Can’t Buy Me Leave (Continued from page 28)
an eligible employee be paid while taking leave. Less well known is its provision that accrued paid leave benefits may be applied – either at the insistence of the employee or the employer – toward the 12-week FMLA leave “ration.”13
While
the FMLA does not allow an employee to “stack” FMLA leave by first exhausting paid leave and then starting 12 weeks of unpaid FMLA leave, an employee may take as much of the FMLA leave with pay as is covered by accrued paid leave benefits.14 For a law that is now a dozen years old,
the FMLA is surprisingly little understood by employers and employees. The statute imposes upon employers substantial responsibilities to make sure their work- ers are aware of FMLA benefits. The employer must post a notice of FMLA benefits in the workplace, e.g., on a bulle- tin board, in the lunchroom, etc.15
When
an employee requests leave in connection with a potentially covered event, (i.e., the employee’s own serious health condition,
13 14 15
29 U.S.C. §2 612 (c), (d). 29 U.S.C. § 2612 (d). 29 U.S.C. § 2619.
the serious health condition of a family member, or the birth or placement of a child), the employer must inform the employee that FMLA leave may be avail- able and assist the employee in applying. The employer must refrain from retaliat- ing against employees exercising FMLA rights.16
Employees returning from FMLA
leave must be given their old jobs back and may not be subjected to adverse personnel action in the form of demotion, reduction in pay or termination.17 Notoriously, the remedies available
under the FMLA are limited. Neither punitive damages nor damages for emo- tional distress are available. Damages are confined to pecuniary losses.18
Absent a
good faith defense, however, “liquidated damages” of twice the plaintiff ’s pecuni- ary loss may be obtained.19
In any FMLA
case, a prevailing plaintiff may collect reasonable attorneys’ fees and costs.20 Injunctive and declaratory relief may also be obtained under the FMLA.21
Because there is no effective administrative proce-
16 17 18 19 20 21
29 U.S.C. § 2615.
29 U.S.C. § 2614 (a). 29 U.S.C. § 2617, n. 13.
29 U.S.C. § 2617 (a) (1) (A) (iii). 29 U.S.C. § 2617 (a) (3). 29 U.S.C. § 2617 (a) (1) (B).
dure established for handling complaints, such relief must usually be deferred until the end of protracted judicial proceedings and typically arrives long after the need for it has passed. The FMLA makes no provision for compensatory damages for any loss other than out-of-pocket pecuniary expenses. If the “only” injury inflicted on the plaintiff was that he was denied leave to attend to some pressing family event, his pecuni- ary expenses are likely to consist of a few babysitting bills or, at most, the fees paid a private duty nurse. But to limit a plaintiff ’s financial recovery for such a loss is to deprecate it. By the time the proverbial day of judgment rolls around, the event that necessitated the leave in the first place has long since become ancient history. By then, the plaintiff ’s loss cannot be redressed by an injunction compelling his employer to give him the leave. If a plaintiff needed the leave to be on hand at the birth of a child, and, at the end of two years of litigation, he indeed is awarded leave, it comes too late. Patently, the loss of one of life’s unique opportunities cannot really be compensated with what may essentially be construed as added vacation. Given the set of alternatives offered
by the statute, (an order compelling the leave after the fact and/or a judgment for out-of-pocket expenses), there is little in the statute to deter employers from mak- ing a business judgment to deny FMLA leave, hope no lawsuit is filed, and wait to pick up the tab later. If the FMLA is to have any normative value at all, and if it is to assign any actual “value” to the “values” it purports to serve, then it must be amended to provide for an award of money damages to a prevailing plaintiff, not limited to compensation for the usu- ally trifling losses attendant to a loss of leave but, rather, to compensate him for the loss of life’s rare opportunities and related emotional distress. Ultimately, if employers are to be dissuaded from denying FMLA-protected leave, then they must run the risk of consequential and punitive damages. Congress, however, shows no signs of tampering with the FMLA. Accordingly, lawyers who wish to avail themselves of the statute’s family values resonance must combine FMLA claims with causes of ac- tion that entitle the plaintiff to emotional distress damages and/or punitive dam- ages. This decision is complex, because the ADA, unlike the FMLA, includes a requirement that a litigant first exhaust his
(Continued on page 32) 30 Trial Reporter Winter 2007
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60 |
Page 61 |
Page 62 |
Page 63 |
Page 64