Can’t Buy Me Leave:


Looking for Effective FMLA Remedies by Robin R. Cockey


Robin R. Cockey (Cockey, Brennan & Maloney) received his degrees from Swarthmore and William and Mary. A past president of the Salisbury City Council, Mr. Cockey is Crisfield’s city solicitor. Mr. Cockey was lead trial counsel in Knussman v. State, a seminal FMLA case and has lectured on related topics at Princeton, American University and the University of Maryland. He has published numerous articles on employment law and trial practice. Mr. Cockey was Maryland ACLU Pro-Bono Attorney of the Year in 1999 and won a Daily Record “Leadership in Law” award in 2004.


If it were played with Monopoly money,


civil litigation would be the best game in the world, democratic society’s succes- sor to the sport of kings. Unfortunately, however, most lawsuits involve enough real money to make litigation a potentially grim business. The stakes are even higher when litigants pursue “nonmonetary relief,” which, in the strange, bloodless language of lawyers, covers almost every human aspiration too precious to be turned into dollars. Are the stakes truly higher? Do we really


care more about the things a judge may decree – restoration of a job, recision of a reprimand, a grant of family leave to be with a newborn – than about money? Is there truly no philosopher’s stone that is able to transform life’s crucial moments


into enough cash to make us forget about them?


These are not the mere musings of a


pedant or a barfly. They are thoughts every lawyer must think who dares to try a case under the Family and Medical Leave Act1 (FMLA), for the statute puzzles both the professor and the practitioner. It is a leave law that provides neither a way to secure leave in time to use it, nor a way to turn the lost leave into monetary damages. It is a remedial federal law that remediates only when the lawsuits it spawns may be grafted unto lawsuits under other laws. In short, the FMLA is a law that gives elabo-


1


Family and Medical Leave Act, 29 U.S.C. §§ 2601-2654 (1994).


rate definition to the values it serves, but does precious little to effectuate them. So why bother? Why should any end- lessly busy employment lawyer litigate an FMLA case? The answer has perhaps more to do


with politics and psychology than with jurisprudence. The FMLA, which guar- antees leave to employees who need it to address life’s most pressing demands – birth, death, disease – was signed into law in 1993, in one of the first acts of the Clinton presidency. In other words, it became possible to file suit over feder- ally protected workplace leave at about the same time when many lawyers began to suspect there was neither a judge nor a juror left in America who wanted to consider any workplace lawsuits at all. The FMLA’s inauspicious birth, coincid- ing as it did with a conservative backlash against lawsuits in general and civil rights lawsuits in particular, was blessed with a noble pedigree. The statute was the descendant of a long and unassailable tradition in American cultural history, the cult of home, hearth and family. The FMLA guarantees that American work- ers may care for a sick relative, attend to the birth of a child or see a loved one off to his last reward. No defense lawyer would possibly argue that a self-respecting American should not be present for his or her family on those occasions. While employers may argue that they should not have to foot the bill, such distinctions are often lost on juries. The FMLA is Bill Clinton legislation


that pushes George Bush family values. It is worth the trouble to cobble together an FMLA lawsuit from the poor materials the statute affords because average people will respect it and few will lump it under the penumbra of “frivolous litigation.” Accordingly, screening FMLA cases re- quires not only knowledge of the statute but also some thoughtful attention to the metaphysics of litigation.


(Continued on page 28) 26 Trial Reporter Winter 2007


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