FMLA Takes A Supreme Hit
by Steve Albanese
 
For years now those of us who have administered and taught FMLA classes have pointed out that Congress intended this law to be a worker friendly piece of legislation.  Employers, including the Postal Service have whined about their obligations under the law for years.  Now they have found an employer friendly forum ....  The Supreme Court.

When the Family Medical Leave Act was passed the Department of Labor was tasked with developing rules to administer the new law.  The Labor Department was facing a country full of angry employers who were upset over obligations this new law placed on them.  In the past when an employee faced a serious health situation for themselves or a family member they had to choose between family obligations and obligations to the job.  Employers like being in control and this new law now placed some control with the employee. The Labor Department also wanted to make sure these reluctant and angry employers properly advised workers of their rights when an FMLA situation arose.  In that regard the Labor Department directed employers to notify employees within two days of when they learned of a potential serious health condition so that the emnployees could make informed decisions.

In most cases when dealing with uncooperative employers a rule is no good unless some penalty is imposed when the rule is violated.  To that end the Labor Department notified employers that if they don't properly advise employees in writing of their rights, they cannot charge the absence against the 12 weeks.  In other words if I tell my employer that I or a family member has a serious health condition on June 1, the employer has two business days to send me an explanation of my rights under the law.  Publication 71 was designed for that purpose.  If my employer does not send me the publication 71 till July 1, absences occurring between the period of June 1 to July 1 is protected but not charged against my 12 weeks.

Such a case occurred between an employee and his employer.  (Ragsdale v. Wolverine Worldwide).  The employer was properly notified of the health condition and they failed to give the employee any Publication 71.  The worker was out for 30 weeks.  Based on the Department of Labor rule, the 30 weeks were protected and not charged. Following the absence, the company fired the worker. A lawsuit was filed in behalf of the workers and it eventually reached the Supreme Court.
 
During the litigation the employer admitted it never gave proper notice to the worker during the 30 week absence but went on to say that the Department of Labor penalty of not charging the absences against the 12 was excessive.  Lawyers for the worker argued that based on the Department of Labor rule the entire 30 weeks was protected and the employer was barred from taking discipline.  Four supreme court justices agreed; however, Justices Rehnquist, Kennedy, Stevens, Scalia and Thomas sided with the employer.

On a 5-4 vote the Supreme Court said that the Department of Labor rule unfairly punished this employer.  The Supreme Court also stated that the law contained a $100 penalty for violating the notification requirements and anything beyond that is disproportionate and inconsistent with the law.  The Court ruled that since the statute only allows 12 weeks of FMLA per year the employer's decision to fire a worker who was out for 30 weeks was legal. The court left open the question of whether written notice to workers in addition to the posted notices were actually required by the statute.

The effect of this ruling is devastating.  Now when an employee or his family member is out on FMLA, the employer is free to ignore its obligation to send notice to the worker.  If challenged the employer is facing a $100 fine .... Big Deal!