Key to remember:  Too much contact can risk an FMLA interference claim. How much is too much will depend upon the situation, so it pays to be careful.

Applies to: All public employers and private employers with 50 or more employees.

Impact to customers: This cautionary tale can help customers navigate the slippery waters of how much contact they may make with employees while on FMLA leave.

As an office manager, Sada’s tasks included keeping track of the money in the company safe. At times, she was instructed to purchase supplies without accounting for such funds, and at others was given receipts but no information relating to the purposes of the funds. All this made Sada uncomfortable.

At one point, Sada requested and was granted FMLA leave. Before the leave began, however, she wanted to finish some remaining tasks. Barbara, her boss, told her not to worry about them until she returned to work. This also made Sada uncomfortable.

While on FMLA leave, Barbara and Francine, who worked in the HR Department, called Sada repeatedly about financial tasks. On one day alone, Sada was called multiple times and asked many questions receipts, including questions about receipts and records outside of the standard receipt book.

Eventually, Sada learned that the receipt inquiries were part of an audit and financial investigation into the company financial records. Now, in addition to feeling forced her to perform her own job functions and functions outside her position while she was on FMLA leave, she also felt she was required to participate in the audit, which was beyond the FMLA’s allowed de minimis contact.

Sada returned to work as scheduled but was confronted and told to leave the premises and placed on paid administrative leave pending the outcome of an official internal financial investigation.

Six months after the end of her FMLA leave, Sada was fired for embezzling over $1,500. She sued, arguing that the employer interfered with her FMLA when it contacted her numerous times. She also claimed the employer used her FMLA leave as an opportunity to pin her as a scapegoat for alleged financial inconsistencies.

The employer argued that Sada was terminated for the embezzlement.

The court allowed the FMLA interference claim to proceed due to the amount of contact with Sada while she was on leave, and also allowed Barbara and Francine to be held individually liable.

Friends, contacting employees on FMLA leave is not prohibited, but don’t overdo it. Multiple calls regarding work could result in a case similar to this one.

Smith v. School Board for the City of Norfolk, Virginia, District Court for The Eastern District of Virginia, No. 2:21-cv-138, November 5, 2021.