When It Comes to the FMLA, Technicalities Matter

Oftentimes, courts construe the Fair Labor Standards Act and the Family Medical Leave Act (“FMLA”) in the employee’s favor, much to the disappointment of employers.  However, the Ninth Circuit Court of Appeals recently refused an invitation by a plaintiff-employee to overlook his technical noncompliance with the FMLA’s notice provision and it affirmed judgment in favor of the employer.  Walls v. Central Contra Costa Transit, No. 10-15967 (9th Cir. Aug. 3, 2011).

In that case, the employee was a bus driver who was terminated from his employment on January 26.  The employee then commenced a union grievance process against his former employer and, after reaching an agreement with his former employer, he was reinstated on March 2.  On March 1, one day before his reinstatement, the bus driver notified his former employer of his intent to take FMLA leave.  On March 3, one day after being reinstated to his former position, the bus driver incurred an unexcused absence and was terminated for a second time.

The bus driver sued his former employer arguing that his second termination violated the FMLA because he was terminated for his absence despite his notice on March 1 of his intent to take protected leave under the FMLA.  However, the Ninth Circuit rejected the employee’s argument, noting that to establish an FMLA violation, the employee must demonstrate that the employer received sufficient notice of an employee’s intent to take FMLA leave.  Since the bus driver was not an employee on March 1 when he informed his employer of his intent to take FMLA leave (his reinstatement as an employee was not effective until March 2), any notice provided to his employer on March 1 was ineffective.  The employee would have had to restate his intent to take FMLA leave on March 2, after he was reinstated to his position.

While the facts of this case are rather unique, it serves as a reminder that technicalities – no matter how slight they may seem – may be dispositive in employment litigation.