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When federal compliance and N.C. law collide: Violating FMLA doesn’t end at-will employment

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in Firing,FMLA Guidelines,Human Resources

Employers that end up violating the FMLA—unintentionally or not—don’t face an additional problem under North Carolina law.

The supposed problem: At-will employees in North Carolina can sue their employers if they’re terminated and the discharge violates public policy.

Why it’s not a problem: Fortunately, failing to follow the intricacies of federal laws and regulations doesn’t violate public policy.

Recent case: Gwen Herndon sued her former employer, TIAA-CREF, for allegedly failing to comply with the FMLA. Her attorneys also added a state claim of wrongful discharge, arguing that by violating the FMLA, TIAA-CREF destroyed its right to fire Herndon without a good reason. Firing her, they argued, violated public policy.

The court disagreed and dismissed the case. (Herndon v. TIAA-CREF Individual and Institutional Services, No. 3:09-CV-120, WD NC, 2009)

Final note: You may wonder why attorneys try to sue employers under so many different theories and why they often tack on state claims. More claims in the same case means that the case becomes more expensive for the employer. That, the employee’s attorneys think, may make it more likely the employer will agree to settle the case.

But the main reason is that, by trying different claims, they multiply the chance that one will stick. Plus, some federal laws have limits on the amount of money an employee can collect, while many state laws lack those limits. A jury is free to order employers to pay as much as the jury believes the case is worth.

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