Supreme Court passes on FMLA retaliation

Where an employer is located makes a difference when it comes to defeating an employee’s FMLA retaliation lawsuit. That’s because different federal courts use different standards for what an employee needs to prove to win a retaliation case under the FMLA.

The U.S. Supreme Court last month had a chance to clear up the conflict. However, the justices declined to hear an 11th Circuit Court of Appeals case that could have resolved contradictory rulings.

For now, employers should consult their attorneys to learn the appropriate standard. It is entirely possible that employers that operate in different parts of the country may have to have different FMLA policies.

At issue is the standard employees must meet to prove an employer retaliated against them for using FMLA leave:

• Some circuits use the “but for” standard, meaning that “but for” the employee’s use of FMLA leave, no disciplinary action would have occurred.

• Other circuits use the “mixed motive” standard, meaning employers can be found to have retaliated if the employee’s FMLA usage played any part in a subsequent disciplinary action.

In the 11th Circuit case the court refused to hear, an auto dealership manager took FMLA leave for appointments related to his unborn daughter’s health. After five days, his supervisor told him he had to return to work. That evening he received a “Manager of the Month Award.” Six days later, he was fired.

When the manager sought unemployment, the dealership disparaged his work. When he filed the FMLA retaliation complaint, the dealership changed its story, saying he had been fired for swearing in front of a customer.

The federal district court, using the “but for” standard, dismissed the manager’s retaliation claim. An 11th Circuit panel agreed, despite a precedential case saying employment cases should use the “mixed motive” standard.

Advice: With the Supreme Court refusing to resolve the dispute between the circuits (or in this case, within the circuit) employers should consult their attorneys before terminating an employee who has used FMLA leave.