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Federal Judge Rules UK Time and Attendance Policy Violates FMLA

| May 1, 2019 | Firm News |

In the world of employment law, summary judgments for plaintiffs are exceedingly rare. For you non-lawyers (no shame), judges can enter summary judgments when a party has shown that there are no issues of material facts left to decide, and therefore a jury is not needed for a particular legal claim.

In a recent opinion in favor of a Robert Roark, PLLC client, we were able to obtain summary judgment on behalf of a former employee in the finance department at the University of Kentucky College of Dentistry. The facts are fairly straightforward. Our client’s husband had an emergency medical event that required him to be in the UK ICU for several days. One morning, our client received a call that her husband was being discharged from the hospital later that afternoon, and that she would need to be there to pick him up and receive instructions from the doctors, since she was going to be taking care of him for the foreseeable future. It was undisputed in the case that our client was unaware that her husband was being discharged before this call. Our client immediately alerted her manager of her need for emergency FMLA leave, and proceeded to pick her husband up later that afternoon.

As a result of our client’s emergency FMLA leave, UK issued our client a corrective action because she supposedly violated the university’s time and attendance policy, which required employees to provide at least 24-hours’ advance notice of any and all absences – including absences for emergency FMLA leave. The Honorable Judge Hood, sitting in the Eastern District of Kentucky, said not so fast. As Judge Hood wrote:

“The FMLA creates substantive rights. As such, ‘[i]f an employer interferes with the FMLA-created right to medical leave or to reinstatement following the leave, a violation has occurred.’ Robinson v. T-Mobile, 663 F. Supp. 2d 604, 612 (E.D. Tenn. 2009); see also 29 U.S.C. 2615(a)(1) (requiring that an employer not ‘interfere with, restrain, or deny the exercise of’ FMLA rights).”

The University stuck to its guns. The University admitted that our client was entitled to FMLA for the afternoon in question, but argued that it could still discipline her for not complying with its 24-hour advance notice policy. The Court did not agree.

Under the FMLA, if leave is unforeseeable, the applicable Federal regulations only require an employee to give notice to her employer of the need to take FMLA leave “as soon as practicable under the facts and circumstances of the particular case.” 29 C.F.R. 825.303(a). Furthermore, “in the case of an emergency requiring leave because of a FMLA-qualifying reason, written advance notice pursuant to an employer’s internal rules and procedures may not be required when FMLA leave is involved.” 29 C.F.R. 825.303(c).

The Judge in our case ruled that our client had, in fact, given sufficient notice of emergency leave under the FMLA. The Court further held that, as a matter of law, the University’s policy violated the FMLA by interfering with our client’s FMLA rights:

“Ultimately, the University of Kentucky’s FMLA process, which incorporates the College of Dentistry’s notice requirement, violates the FMLA in situations where unusual circumstances require employees to take unforeseen FMLA leave. There is no apparent exclusion in the University’s FMLA policy for unforeseen situations or emergency FMLA leave. This notice requirement, without some allowance for unusual or unforeseen circumstances, conflicts with FMLA regulations that only require an employee to provide notice to take unforeseen FMLA leave as soon as practicable in emergency or unforeseen situations…As a result, the University’s corrective action memorandum, which faulted [the former employee] for failure to provide twenty-four hours’ notice before taking unforeseen leave, effectively disciplined [the former employee] for taking FMLA leave to which she was entitled. This discipline, which is related to [the former employee’s] use of FMLA leave and the University’s FMLA leave policy, constitutes FMLA interference.”

In addition to finding that the University illegally interfered with our client’s FMLA rights, the Judge also refused to accept the University’s argument that it cannot be sued for FMLA interference or retaliation because it is a governmental entity.

If you or someone you know have questions about your rights under the FMLA, or any employment issue, for that matter, we’d be happy to help. Give us a call or shoot us a message on our Contact Us page. Thanks for reading!