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Make sure employees understand the method you use to calculate FMLA leave

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in FMLA Guidelines,Human Resources

Employers that don’t take the time and effort to understand the ins and outs of the FMLA do so at their peril. Courts are beginning to lose patience and have started assessing employers double damages for FMLA violations.

Something as simple as not making sure employees understand what method you use to calculate FMLA leave entitlements can mean huge liabilities, as can providing erroneous leave information.

Recent case: Carl Thom worked for American Standard as a molder for 36 years and expected to retire with full benefits and health coverage.

Then Thom injured his shoulder in a nonwork-related accident. In order to have the damage surgically repaired and recover, he requested FMLA leave. HR provided written confirmation that it had approved his requested FMLA leave, which would expire on June 27, 2005. Thom then scheduled and underwent surgery.

His recovery went better than initially expected, so Thom’s doctors gave him an anticipated full-duty return date earlier than the approved expiration of his leave.

Meanwhile, American Standard terminated Thom. For some reason, it had counted every day since June 13 as an unapproved absence and fired him under its attendance policy. No one explained to Thom why or ever informed him that the June 27 return date was wrong, expired or altered.

Thom sued, alleging interference with his right to FMLA leave.

It was then that American Stand­ard explained why it calculated that his FMLA leave had ended on June 13. It said it had changed its FMLA policy to reflect a decision to use the so-called rolling method to calculate leave eligibility. That’s one of several methods employers can choose under the FMLA to calculate how much leave employees are entitled to at a particular point. Under that method, Thom’s leave expired on June 13.

The original June 27 return date was calculated based on the calendar-year method, which resets FMLA eligibility each Jan. 1. No one from American Standard could explain to the trial court why the company didn’t tell Thom about the change.

The court therefore concluded that Thom was entitled to the later end date, because the FMLA allows employees to use the most generous method if their employer doesn’t clearly designate which method it uses. It awarded Thom back pay of $104,000, plus attorneys’ fees. It told the company to either retroactively reinstate Thom to his original full retirement date or provide an additional retirement annuity to make up for the lower retirement benefits that resulted from his termination.

Thom and American Standard both appealed parts of the decision.

The 6th Circuit Court of Appeals refused to reduce the damage award—and instead doubled it. The FMLA allows double damages if employers don’t act in good faith. The appeals court said American Standard hadn’t acted in good faith, since it fired a long-term employee and refused to reverse the decision even when it became apparent that the company hadn’t told him it had changed the leave calculation method. (Thom v. American Stand­­ard, No. 09-3507, 6th Cir., 2012)

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{ 2 comments… read them below or add one }

Jenn May 22, 2012 at 1:35 pm

Dealing with FMLA can be difficult. I tend to find reducing liability while maintaining proper documentation quite tricky. The complex rules surrounding FMLA are constantly evolving leaving us (and our employees) feeling overwhelmed. I found this site <a href="http://www.employmentlawhq.com&quot;. It’s free and I’ve found it helps clear up confusion. I just have my employees go through the app and bring the final report to me for their personnel file. It’s a great start to the conversation.


Jenn May 22, 2012 at 1:37 pm

My apologies for my sloppy HTML. Try this: http://www.employmentlawhq.com


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