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FMLA? What’s FMLA? … Do Your Leaders Know their Employment-Law Basics?

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Sure, at one time or another, we’ve all worked for some great bosses and some bad bosses. But nothing can be more debilitating than working for someone who is ignorant of the laws. In the following case, a company president walked right into an FMLA lawsuit because he had never even heard of the Family and Medical Leave Act. He knows about it now ...

Case in Point: Nydia DeFreitas, a residential property manager for a Utah real estate firm, was successful at her job. So successful that when she tried to resign, the company’s president, James Terry, lured her back with a substantial raise and promotion to regional vice president.

DeFreitas was then tasked with managing one of the company’s most challenging properties. She continued to receive lavish praise, including an e-mail that said she was “doing a dynamite job.”

But the trouble started when DeFreitas had to undergo a hysterectomy. She informed president Terry that she needed to take medical leave. Terry never mentioned the FMLA or her rights to take job-protected, unpaid leave under the law.

DeFreitas was given time off for the surgery. But about three weeks into her leave DeFreitas informed Terry that she would need an additional six weeks to recover. The next day she received an unexpected e-mail from Terry telling her that she was fired. His reasoning: DeFreitas had poor interpersonal skills and several management problems had occurred at her properties. (However, when a prospective employer for DeFreitas later contacted the company, Terry indicated her reason for leaving the company was “illness.”)

DeFreitas sued, citing interference with her FMLA rights. The company countered that she was fired for business reasons. And anyway, the company argued, how could president Terry have denied her FMLA leave since he had “never heard about that law” before the claim? Can you be punished for violating a law that you’d never heard of? (DeFreitas v. Horizon Investment Mgmt. Corp., 10th Circuit, 8/14/09)

Don't be caught asking, "How did this happen?" Get the essential guide on how to handle leave requests. Get the FMLA Compliance Guide: Practical Advice on Managing Family and Medical Leave

What happened next and what lessons can be learned?

The court sided with DeFreitas, sending the case to a jury trial. Ignorance of employment law is no excuse, it said.

The court noted that it was ironic that the FMLA was enacted (16 years ago) precisely because “employers had found it in their economic self-interest” to fire employees who were unable to work due to medical reasons, and that president Terry’s admission makes it “eminently reasonable to infer that he engaged in that very practice.”

The court also astutely observed, “Whenever termination occurs while an employee is on leave, that timing has significant probative value.” Tick, tock.

Don't get caught in this lawsuit perfect storm. The FMLA Compliance Guide will help you discover the seven issues you must cover – in writing – with an employee requesting FMLA leave, whether you can legally fire someone who is on FMLA leave, and an amazingly simple strategy that prevents employees from taking 24 weeks of back-to-back leave.

The FMLA Compliance Guide is guaranteed to give you concrete answers to your most perplexing FMLA questions. Get your copy here...
Three Lessons Learned … Without Having to Go To Court

1. Take responsibility for training your leaders. How embarrassing and devastating. What company has a president who hasn’t heard of the Family and Medical Leave Act of 1993? HR must take responsibility for educating their leaders about 21st century laws.

2. Follow your own rules. The court noted that this company failed to follow its own employee handbook, which promised to first give an employee coaching before firing. Don’t create the rules and then refuse to play by them. Courts hate that.

3. Buy an FMLA Stopwatch. Gee, if a court can click start (leave) and stop (you’re fired) in the same breath, you are probably going to being writing a check within the minute.
12 weeks of unpaid, job-protected leave for “serious health conditions” can be very complicated in the real world. Every day, employers across the country deal with real-world situations and questions such as:
  • book cover In an emergency, can an employee claim FMLA without informing someone at work?
  • Do I have to count temporary and part-time employees toward the 50-employee minimum?
  • What if my company downsizes during an employee’s FMLA leave? Will I still owe her a job?
  • Does treatment for substance abuse qualify an employee for FMLA leave?
  • Can I require an employee to return to work early if I offer a “light-duty” assignment?

Get the answers to these questions and more...

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{ 3 comments… read them below or add one }

Chris December 31, 2009 at 10:24 pm

What avenues does an employer have to hold an employee accountable to their end of the FMLA Laws when they have intermittent use to take care of a family member? I have a few employees that I have a strong feeling that they are abusing the FMLA. They call in 30 minutes prior to their shift to take FMLA for the first 2 hours & then they show up 30 minutes later on time. I feel they are using the FMLA to secure not being late to work. I also have a few employees that take time off work periodically, but consistently around the time school gets out. She has a child care issue, but the FMLA is to take care of her mother who has medical conditions. What recourse do I have to guarantee that she is leaving for her mother, not her child? Nobody talks about issues like these, where employees have FMLA to take care of other people & us it intermittently.


DrStillStanding August 25, 2009 at 1:22 pm

Phillip, I agree with you 100%!

When I read this I had to put my hand over my mouth, to keep from laughing so loud!

Hey Phillip, at first I thought I was reading something out of the 1600’s and I could have understood why the CEO had NEVER heard of FMLA, but then I re-read the article and found out this happened from 2000-2009, and I fell on the flooor laughing and holding my stomach!

Thank goodness I am at home, had I read this at work, folks would have thought I was nuts!


Dr. StillStanding

PS: Where in the world was his human resources person(s) at?????

I don’t know about you Phillip, but I am going to contact Ms. DeFreitas, I imagine she received a LARGE settlement and I am sure she would not mind sending me on a cruise for 30 days! (It’s not like she will notice the cost of the cruise with the settlement she probably received!!!)

The CEO has to feel as dumb as mud! OMG!


Philip Miles August 21, 2009 at 2:30 pm

Wow. Is it safe to say they didn’t have one of the posters either?


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