Employer wins FMLA case despite failing to provide notices to employee

Employers must provide certain notices to employees when a need arises to take time off under the federal Family and Medical Leave Act (FMLA). Employers that forget this step, yet grant FMLA leave, could still be held liable. In this case, however, the employer got lucky.

Employee takes leave to care for parent

From early on at the company, Jessica's supervisors knew that her father lived in a different state and was terminally ill. They also knew that Jessica was her father's primary caregiver and visited him frequently.

One day, Jessica got a call that her father had been rushed to the hospital to undergo emergency surgery. Jessica immediately sent her supervisors an email saying that she was flying out to see her dad. She was away from May 2 to May 6.

A few weeks later, company executives noticed on her timecard that Jessica had clocked in during her absence. Upon noting this discrepancy, the company HR team insisted that Jessica correct her timecard. No one, however, informed Jessica that her father's medical emergency might entitle her to time off under the federal FMLA.

Poor job performance leads to termination

On May 25, Jessica arrived late to work and was escorted into a meeting with her supervisor, a studio manager, and an HR assistant. During the conversation, they suggested that Jessica transition from her full-time role to a freelance position because it might better suit her schedule.

Jessica declined the offer and asked whether this had to do with her father, to which the company representatives answered that it didn't. At that point, they decided to terminate Jessica effective May 30.

Seems Jessica had a history of coming and going as she pleased, which did not sit well with her supervisors.

Her supervisors repeatedly reported that her:

• Performance was subpar,
• Projects often went incomplete, and
• Attitude at work made it difficult to collaborate.

Employee sues; employer prevails

Jessica sued, arguing that her FMLA rights were violated because the company failed to provide the FMLA's required notices.

While the court agreed that the employer didn't provide the notices, it, however, found in favor of the employer, because Jessica was provided the requested leave and, therefore, did not suffer any harm from the technical non-compliance with the FMLA's notice requirements.

Graves v. Brandstar, Inc., No. 21-13469, 11th Circuit Court of Appeals, May 9, 2023.

Key to Remember: Even if employees are granted FMLA leave, they could still claim they were harmed by not receiving the proper notices. The Eleventh Circuit ruled in favor of the employer in this case. But there's no guarantee another court would. Employers should still provide those notices to avoid the risk of a claim.