Winning the Battle but Losing the War in FMLA Cases

The FMLA allows for two different theories of recovery-interference and retaliation. Interference is when an employer denies an FMLA benefit to which an employee is entitled and of which the employee provided notice. Retaliation is when an employee's use of a protected FMLA right causes an employer's...

Be careful what you ask for: retaliatory counterclaims under the FMLA

Being sued by a current or former employee generally does not trigger many positive reactions from employers. A common question which is often asked is: can we counter-sue? When pressed by counsel for the basis of a counterclaim, the answers range from those with a colorable basis to those based on emotion...

Don't estop believing: employer backs itself into FMLA claim for ineligible employee

I've written before about the FMLA's unique rules for when an employer is covered and when an employee becomes eligible to take leave. The FMLA covers any private employer that has 50 or more employees on the payroll during 20 or more calendar workweeks in either the current or the preceding...

Horseshoes, hand grenades and....FMLA eligibility?

And here I thought close only counted in the first two... Who knew that close enough is good enough under the Family and Medical Leave Act (FMLA) when meeting the 1,250-hour eligibility requirement? Apparently, the Second Circuit Court of Appeals in this recent decision . In Donnelly v. Greenburgh...

FMLA Back Pay Includes Overtime

In Pagan-Colon v. Walgreens of San Patricio , 2012 U.S. App. LEXIS 18595 [ enhanced version available to Lexis.com subscribers ], the First Circuit held as a matter of first impression that an award of back pay under the FMLA includes overtime. A jury entered judgment in favor of the plaintiff on his...