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 adverse action. These claims are
mutually exclusive, and a terminated employee can succeed on one and fail on
Consider, for example, Platt v. Lamrite West, Inc. (N.D. Ohio 8/17/11). Platt
involved an employee terminated for violating an employer's call-off policy
after making a request for FMLA leave. The court denied the employer's motion
for summary judgment on the employee's interference claim, but granted summary
judgment and dismissed the employee's retaliation claim.
On the interference claim, the court concluded that there
was a genuine issue of fact as to whether the employer's FMLA paperwork
modified the call-in procedure. At the same time, however, the court concluded
that there was no issue of fact on the employee's retaliation claim:
He ... would have been terminated for violating this policy
even if he had not requested FMLA leave.... Between 2007 and 2010, 56 warehouse
employees were terminated by Defendant for failing to comply with Defendant's
attendance policies. Like Plaintiff, these former employees were terminated for
failing to report to work or notify Defendant for three consecutive work days.
Unlike Plaintiff, these former employees did not seek FMLA leave, further
supporting Defendant's proffered non-retaliatory grounds for termination.
As the court pointed out, holding the employee to the
call-off policy "may create an interference claim, [but] it does not give rise
to a retaliation claim." Thus, you can terminate an employee for exercising an
FMLA right without retaliating against him or her, so long as you do not treat
the employee any differently than any other employee. However, that termination
still might give rise to a claim under FMLA for interfering with the exercise
of FMLA rights. In other words, you might win the retaliation battle against a
terminated employee, but ultimately lose the FMLA war.
Visit the Ohio Employer's Law Blog for more
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