It pays to keep some records longer than you think you’ll need them. For example, any notes, correspondence, medical certifications and other documents related to an employee’s request should be kept a minimum of three years.
If the employee was terminated for absences that may have been for reasons, you’ll want to keep records longer, back to the first absence you counted against the employee.
Here’s why: Unlike other cases of discrimination—which require employees to file an EEOC, state or local agency complaint before suing in court—FMLA complaints can be filed directly in court either two or three years after the employee claims your organization discriminated.
Employees have two years to sue for run-of-the-mill FMLA violations and three years if the violation was “willful.” To be willful, the violation must be either intentional or caused by a reckless disregard for the employee’s rights. If you don’t have good records to justify FMLA decisions, it’s more likely a court may find you acted willfully and approve a lawsuit three years later.
Recent case: Robert Blades, a corrections officer for the Burlington County jail, hurt his back at work. For the next few years he was written up numerous times for insubordination and took a great deal of time off for back problems. He was discharged in April 2000, after 28 reprimands for being absent without calling, 19 for tardiness and eight for absences when he had no sick days left.
He filed a federal lawsuit in August 2002, claiming some of the absences that led to reprimands were covered by the FMLA. But the court tossed the case out because Blades couldn’t show any willful violation—the employer had plenty of documentary evidence to back up its claims. (Blades v. Burlington County Jail, No. 02-3976, DC NJ, 2007)