Don’t write off a lawsuit just because a former employee misses state discrimination agency and EEOC deadlines to file a complaint.
If the employee has an-related claim, she has up to three years to file a federal lawsuit. And she doesn’t have to file anything with the EEOC or a New York state or local discrimination agency.
The fact is, for routine FMLA violations, employees can wait up to two years before suing.
But if the violation is deemed “willful,” employees get another year to file.
Recent case: Beverly Riddle claimed she was fired after going to Citibank’s HR department to request anform. She alleged in a lawsuit, filed nearly three years after she was fired, that HR refused to give her the forms and immediately fired her.
Citibank argued that, at most, Riddle had two years to sue. It asked the court to dismiss her lawsuit.
A lower court did, but now the 2nd Circuit Court of Appeals has reversed that decision.
The appeals court reasoned that if the facts are as Riddle alleged, then the employer willfully disregarded her rights under the FMLA to apply for leave. Willful violations are subject to a three-year limit for filing a lawsuit.
The lower court will now take up the case again. (Riddle v. Citibank, et al., No. 10-5030, 2nd Cir., 2011)
Caution! HR professionals may be personally liable for willful FMLA violations.
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- Parent may take FMLA leave to care for grown children
- Managing poor attendance
- Worker just mentions family member's illness? That's not adequate FMLA notice
- FMLA: Treat leave request involving adult children similarly to those involving parents