Atlanta Employment Attorneys Blog
Whether you’re an employee or an employer, it is important to understand the rights and responsibilities set out in the Family and Medical Leave Act. It is also vital to know what you have to prove (as a worker) or disprove (as an employer) in a case of illegal retaliation or interference in violation of the FMLA. To better understand both your rights and your obligations — both at work and at trial — you should contact an experienced Atlanta FMLA retaliation lawyer to get the knowledgeable answers you need.
A recent federal case that originated in Florida is important for a couple of reasons. One, it establishes for the first time what the 11th Circuit Court of Appeals (whose decisions guide federal cases in Florida, Georgia, and Alabama) considers to be the proper analytical standard for assessing FMLA retaliation cases. Two, it provides a good reminder to employers of the profound benefits that can be reaped by engaging in proper and thorough documentation of workers’ performance (and performance issues) throughout their time with that employer.
In the FMLA case from Florida, the employee was a woman who worked for a nationwide chain of pharmacies. The employee had a son with profound disabilities, requiring her to use FMLA leave periodically.
In early 2017, after transferring to a new location, the employee requested approval for intermittent FMLA leave covering the upcoming 12 months. The employer terminated the employee in early April and subsequently denied her FMLA request. The employer stated that the termination was the result of the woman’s poor work performance (specifically, instances of insubordination and dishonesty,) and was completely independent of her seeking FMLA leave.
The former employee sued, alleging that the employer had retaliated against her for requesting FMLA leave. The trial court ruled for the employer, issuing an order tossing the case before trial. The appeals court later upheld that decision.
What Does (or Doesn’t) Constitute Proof of Causation
The legal foundation of the employer’s success rested upon the proper standard for analyzing FMLA retaliation claims. A worker can pursue an FMLA retaliation claim using direct evidence of reprisals or building a circumstantial case. When an employee opts for the latter route, courts will assess the case using the framework set out in McDonnell-Douglas v. Green. That Supreme Court case says the initial burden of proof falls on the worker to establish that she engaged in protected activity, that her employer punished her, and that the protected activity caused the punishment.
That last component — causation — was the centerpiece of extensive arguments by both sides in this case. The employer argued that the law demanded the application of the more stringent “but-for” causation standard, which would require the worker to establish that, but for her protected FMLA activity, the employer would not have punished (fired) her. The worker argued for a more relaxed standard under which she was only required to show that illegal retaliation was one of the motivating factors underlying the termination.
The appeals court noted that it had never “clearly articulated the causation standard for FMLA… retaliation claims,” then did so in this case. The court looked at the FMLA’s text and concluded that, although it used the wording “for,” “for” was the equivalent of “because of.”
That conclusion was crucial because the court next referenced a 2013 Supreme Court case — University of Texas Southwestern Medical Center v. Nassar, where the high court decided that any time a statute uses “because of” language (or an equivalent of that language,) a retaliation claim under that law must be assessed using the “but-for” causation standard.
The Importance of Documenting Workers’ Performance Problems
The application of the but-for standard functionally doomed the pharmacy worker’s case. That’s because the employer had done a good job documenting extensively the worker’s performance problems throughout her time with the company, and much of that documentation long predated the woman’s 2017 FMLA leave request. The worker had a history, during her decade-plus with the company, of intermittently poor performance reviews and criticism from multiple supervisors asserting that she had communication and task completion issues. With that evidence before the court, the worker could not establish that, but for the employer’s alleged desire to retaliate, she would not have been fired.
If you have questions about your rights or responsibilities under the FMLA, the helpful Atlanta FMLA retaliation attorneys at the law firm of Parks, Chesin & Walbert have experience-driven answers and advice you need. Contact us today at 404-873-8048 or through this website to schedule a consultation.