More than half of the states have adopted their own leave requirements. You must comply with each state's requirements if you have employees in that state.
Some state laws mirror the federal FMLA to a degree, but others have different provisions. For example, under the federal FMLA, employers can require that paid leave be substituted, but some state leave laws specify that employees must have this choice. Whenever federal and state leave laws run concurrently during an employee's leave, you must evaluate them separately and comply with each.
Variations in state and federal laws can affect:
Since Unum offers a consistent, integrated and systematic FMLA and state leave management service, we often have discussions with employers about the challenges of leave administration. Based on those discussions, and our observations while implementing our leave management service for employers around the country, we've learned that it is important for employers to keep an eye out for these common FMLA administration errors:
Failing to comply with the FMLA can be costly for employers. Sometimes managers are held personally responsible for violations, and companies can face expensive legal and settlement fees. The following court cases are actual examples of FMLA litigation.
In Schultz v. Advocate Health and Hospitals Corp.,2 a long-time employee alleged his former employer terminated him in retaliation for using FMLA leave to care for his two ill parents.
The employee took intermittent leave over several months. During this period, his supervisors established performance standards he was unable to meet. The problem escalated until the employee was terminated.
A federal jury awarded $11.65 million to the employee. The award consisted of $10.75 million against the employer and $900,000 individually against the two supervisors.
In Allen v. A.G. Edwards & Sons, Inc.,3 plaintiff Donald Allen brought suit against his employer for violations of the ADA and FMLA as well as state laws on constructive discharge.
In 2001, he was diagnosed with bipolar disorder and briefly hospitalized. When he returned to work, A.G. Edwards refused to reinstate him to his old job. The company had options under FMLA and ADA but was concerned about Allen's ability to perform his job. Allen claimed he was demoted to financial consultant, requiring him to report to the former assistant branch manager. The employer argued that there was no FMLA violation because they had returned him to a manager position.
The arbitration panel ultimately found for the plaintiff and found that the employer violated the FMLA by failing to reinstate Allen to his same or equivalent job as defined by the FMLA regulations. Allen was awarded $1.25 million.
In Dotson v. Pfizer,4 plaintiff Dotson was seeking to adopt a child from Russia and took intermittent time off to attend to the adoption, taking two trips to Russia. The employee kept his employer informed and spoke to his HR Dept. After returning from Russia with the child, the employee was terminated based on an alleged violation of company policy. Dotson sued for FMLA retaliation. The employer argued that the employee was not entitled to FMLA protection because he failed to indicate that he needed FMLA leave. The court rejected this argument, noting that an employee does not have to expressly state that he needs FMLA or use any magic words to trigger the employer's obligation.
A jury found for the employee and awarded him more than $1 million plus prejudgment interest. The employer appealed but the court affirmed the decision in the employee's favor. The court also held that the lower court erred when it failed to award the employee prejudgment interest, making the judgment even larger than that awarded by the jury.
In Lore v. Chase Manhattan Mortgage Corp.,5 plaintiff Nicholas Lore requested leave to address several health issues. He was told an additional manager would be hired to assist with his responsibilities and enable him to take leave. When the additional manager was not hired, Lore inquired of his manager again requesting leave. Less than one month later, Lore was terminated. Lore sued Chase Manhattan for failing to grant him, an eligible employee, leave under the FMLA. In addition, Lore argued Chase Manhattan unlawfully retaliated against him for his attempts to exercise his rights under the FMLA.
A jury found for the employee and awarded him $2,227,241. With liquidated damages equal to the amount of the verdict and prejudgment interest added in, the recovery equaled between $6.2 and $7.6 million.