Suits In The WorkPlace

Ball of Confusion

A recent Sixth Circuit case shows, again, how careful an employer must be when monitoring Family and Medical Leave Act absences.  This is a long story, but stay with me. 

            In Wilkerson v. Auto Zone, Inc., the Sixth Circuit ruled that the lack of coordination between employer managers, which resulted in a failure to notify the employee that her FMLA leave had expired, meant that the employer could be found guilty of interfering with FMLA rights when it fired the absent employee, even if her FMLA rights expired two weeks before she returned to work.

            Wilkerson went out on maternity leave and claimed that she was told she would have six weeks of FMLA leave before the baby's birth, and six weeks after.  But because Wilkerson had used intermittent leave prior to leaving work to give birth, she actually ran out of FMLA leave four weeks following the birth of the baby, rather than six.  Auto Zone failed to inform her of this fact, however.  Further complicating the issue, Wilkerson tested positive for a drug masking agent on a routine urinalysis that was reported to the company shortly after she left on FMLA leave.  Although it was the company's normal practice to advise an employee of a positive drug test, Auto Zone did not so advise Wilkerson, and instead determined that she would be terminated because of the failed drug test when she returned from maternity leave. 

            Before she returned, Wilkerson called Auto Zone regarding a medical release she needed to return to work (inexplicably, at the company's request).  Also inexplicably, the human resources official monitoring Wilkerson's absence expected her to return to work after five weeks of FMLA leave.  When Wilkerson failed to show up after five weeks, the HR official notified company management that Wilkerson had not returned to work when expected.

            Wilkerson ultimately showed up after six weeks of leave and was terminated for failing to report for work or call in her absence after five weeks.  She was not advised that she was terminated for the positive drug test.

            Wilkerson sued, claiming that Auto Zone denied her right to reinstatement and retaliating against her for taking FMLA leave.  A jury found in her favor, awarding $56,000 in damages. 

            As you might expect from such a complicated fact pattern, the Sixth Circuit had several things to sort out.  The initial issue is whether Wilkerson was entitled to reinstatement after six weeks of leave, even though her FMLA entitlement expired after only four weeks.  The Sixth Circuit held that an employer must notify an employee in writing when leave is designated as FMLA leave, and if the employer fails to do so, the leave may not be counted against the employee's 12-week allotment.  The court found that this holding was not in conflict with the Supreme Court's Ragsdale decision, even though it effectively awards additional FMLA leave above the statutory entitlement.  The Sixth Circuit found that because the employee reasonably believed that she was entitled to the additional two weeks of leave, she was prejudiced by the employer's failure to notify her of exactly when the FMLA entitlement would run out.

            Similarly, the court rejected the company's claim that Wilkerson's leave entitlement ended when her doctor released her to return to work after five weeks of leave because Wilkerson was unaware of the company's receipt of the release, despite her calls to verify its receipt.  As for the jury's rejection of the company's claim that it would have fired Wilkerson anyway because of her drug test results, the court noted that the company's failure to notify Wilkerson of the results, as it would normally, along with its formal notice to Wilkerson that she was being fired for attendance, provided ample basis for the jury to reject the company's evidence. 

            This case is almost a model for how not to manage an FMLA claim.  The company's failure to get its story straight regarding why it fired the plaintiff (there were actually three separate reasons for the company's termination decision), failure to properly monitor exactly how much FMLA time the plaintiff had, failure to provide her with notice as to when her FMLA leave would end, and failure to notify her of her failed drug test, provided a basis for the jury to disbelieve all of the company's reasons.  The Sixth Circuit simply affirmed the decision.  The lesson for employers?  Carefully monitor and communicate consistently with anyone out on FMLA leave; have a clear understanding on everyone's part as to exactly how much leave is available and when it will end; when you have more than one reason for terminating an employee, communicate all viable reasons at the time of termination.