Atlanta Employment Attorneys Blog
Potential Family and Medical Leave Act (FMLA) violations might seem like straightforward black-and-white issues. Often, though, they are not. The FMLA contains many complex and nuanced elements. That is especially true if your FMLA matter involves an exceptional circumstance, such as when the family member requiring care is a military service member or when you work for a public employer. Whatever details and statutes your dispute implicates, your case needs — and deserves — advocacy provided by an experienced Atlanta FMLA retaliation and interference lawyer.
An FMLA case recently before the federal 11th Circuit Court of Appeals (which covers Georgia, Alabama, and Florida) examines this issue of caring for Armed Forces members and the FMLA.
The employee was a mom who worked as a program director for a public university in Alabama. In 2020, the director’s daughter endured a sexual assault at her Marine base, and the director requested FMLA leave to travel to Hawaii and care for her daughter.
The university approved approximately one month of leave. Although on approved FMLA leave, the director allegedly received hundreds of work-related emails and requests for assistance with work projects. The director notified coworkers and supervisors that she was on leave. Instead of appropriate responses, she received “increasingly critical feedback from supervisors about her work performance,” according to the lawsuit.
Eventually, the university placed her on a “development plan,” which is a form of workplace discipline. Subsequently, the director resigned, fearing the university intended to fire her.
The university requested the dismissal of the director’s FMLA interference and retaliation lawsuit. In its motion to dismiss, the university contended that it was an arm of the State of Alabama, thus making it immune from civil liability for FMLA violations. (The doctrine of sovereign immunity says states are immune from civil liability in most circumstances. This immunity extends to arms of the states, such as state universities.)
The director defeated that argument, with the courts’ opinions shedding important light on situations where the person in need of care is a member of the U.S. military and the employee-caregiver works for a state employer.
Congress Expanded the FMLA’s Scope in 2008
First, let’s focus on the employee, a parent of a child in the Armed Forces.
In 2008, Congress amended the FMLA to allow employees to care for a “qualifying” family member who is also a member of the U.S. Armed Forces. (Qualifying means a worker has “worked for their employer at least 12 months, at least 1,250 hours over the past 12 months, and work at a location where the company employs 50 or more employees within 75 miles.”) Specifically, the amendment, codified in 29 USC Section 2612(a)(1)(E), stated that employees can use FMLA leave “because of any qualifying exigency . . . arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on covered active duty (or has been notified of an impending call or order to covered active duty) in the Armed Forces.”
Public University Employers and ‘Sovereign Immunity’
The university’s immunity argument hinged on precisely what basis the director sought and obtained leave as it argued that it was immune from liability for Section 2612(a)(1)(E) violations. The trial court said this was irrelevant. The director’s leave, it decided, fell under Section 2612(a)(1)(C) — which covers a need “to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition” –. State government entities were not immune from suit under that subsection (as Congress passed a law abrogating immunity in that instance.)
The 11th Circuit Court of Appeals went further. It agreed with the trial court that state employers could be civilly liable for Section 2612(a)(1)(C) violations but pointed out that these employers also could be liable for violating Section 2612(a)(1)(E), the section related family members in the Armed Forces.
That potential liability arises from something called the “plan of the Convention” doctrine, which is short for “the plan of the Constitutional Convention.” This doctrine says states waive their immunity in cases related to items they agreed to when they ratified the U.S. Constitution. One of these was the building and maintenance of the Armed Forces. According to the appeals court, Congress, by enacting its 2008 amendment to the FLSA, was “exercising its constitutional authority to raise and support a military,” which means that states are not immune from suit when they violated Section 2612(a)(1)(C).
What should be clear from this case is that FMLA compliance and FLSA liability can be intricate and complicated matters. Whether you are an employee or an employer, your case needs the trained eye of a seasoned legal pro to ensure that you are adequately protected. When facing a potential FMLA violation situation, the Atlanta FMLA retaliation attorneys at the law firm of Parks, Chesin & Walbert can help. Our team of knowledgeable attorneys has the experience necessary to ensure you have the effective advocacy you deserve. Contact us through this website or at 404-873-8048 to schedule a consultation today for the advice and guidance you need.