A court used lack of Family and Medical Leave Act
training to award double damages

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Source: http://www.citycollegepeterborough.ac.uk/workplace-training/case-studies-workplace-training/

When a manager learns that one of her employees is in
the hospital for several days, that’s almost always enough
information for the employer to have an inkling that the employee may need
Family and Medical Leave Act (FMLA) leave.

But one employer didn’t think so. And the penalty for
its mistake was costly. Let me explain.

The
Facts

Grace worked for the Center for Human Development (CHD)
in western Massachusetts. On a moment’s notice, she became hospitalized due to
a mental health condition. Upon her admission to the hospital, Grace asked her
son, Jim, to call CHD to report that she was in the hospital and unable to
report to work.

Being the good son he was, Jim called CHD that same
day. And the next day. And the day after that.

Not only did Jim talk to his mom’s direct
supervisor … but his boss … and the boss’s boss. Each time, he made
clear that his mom was ill, in the hospital and could not come to work. After a
few days, Jim shared that his mom could speak, though she was
“unintelligible.”

When all was said and done, Jim had called in to report
and provide updates on his mom no fewer than four times over the course of one
week. At the same time, however, Candy, a supervisor who had taken one of his
calls, got angry with Jim, telling him that it was “not acceptable for him
to call CHD instead of his mother” and told him “not to call
again.” Despite her admonition, Candy asked Jim no questions about Grace’s
condition.

The next day, Candy informed CHD’s vice president of
human resources, Carol, that Grace was hospitalized and unable to work. A few days
later, Candy reported to Carol that Grace was a “no call/no show”
when she failed to personally notify CHD of her continued absences. Carol asked
Candy no questions, not even something like, “Ummm, Candy, isn’t that
the employee you mentioned was in the freaking hospital?” Nope. None
of these questions apparently came to mind.

Despite knowing that Grace had been hospitalized, Carol
prepared a draft termination letter for signature by one of CHD’s executives.
Notably, neither Candy nor Carol told the executive that Grace had been
hospitalized, and that she very well still could be there.

As the story goes, when Grace came back a few days
later looking for her job and with her doctor’s medical certification in hand,
CHD told Grace that her employment had been terminated because she abandoned
her job.

The
Ruling

Whack! That’s
the sound of a swift smack down the jury gave the employer at trial, held in
the U.S. district court for Massachusetts (Boadi v.
Center for Human Development).

No doubt, the jury made quick work of Grace’s FMLA
claims, finding that the employer grossly violated the FMLA when it refused to
allow Grace’s son to report her absences on her behalf and then terminated
Grace immediately after her time in the hospital and without inquiring further.
It awarded her nearly $150,000 in back pay and benefits, plus her attorney’s
fees. 

The loss itself was only part of it. Because the court
found that the employer willfully violated the FMLA, it
awarded Grace liquidated damages, which doubled Grace’s back
pay award. So, Grace gets another $150K.

Insights
for Employers

There are plenty of golden nuggets in today’s lesson:

1. Hey employers, your managers are killing you.
And there is one, simple reason why this is
happening: You are not training your managers on their responsibilities under
the FMLA.

I’ve never seen a case like this one call out—indeed,
practically beg—employers to train managers on the FMLA. Interestingly, every
time the court introduced a new manager in its sad story about Grace, it
specifically commented that the manager was “not trained on the
FMLA.” The court then used the lack of FMLA training to award double
damages to the plaintiff. Why? The court put it simply: “The fact that
[the decision-maker and other managers] had little FMLA training is further
evidence of CHD’s lack of good faith.”

Heck, even the VP of HR was in clear need of FMLA
training, since: 1) she was aware Grace had been in the hospital; and 2) still
chose not to inquire further to determine whether Grace’s inpatient stay was
the reason for her extended absence.

Please, please, please train your managers on how to
effectively and lawfully manage leaves of absence under your personnel policies
and the law. Investing a couple hundred bucks now to conduct effective FMLA
training will literally save you hundreds of thousands when the real-life
situation presents itself.

2. Family members can report employee absences in
limited situations like this one. 
When an employee’s family member reports that your
employee is in the hospital and “unintelligible” when communicating,
first have some empathy. Then, recognize this situation as an unusual
circumstance because the employee’s inpatient stay at the hospital was the
reason they couldn’t reach you. This comes right out of the regulations at 29
CFR 825.303(a): “Notice may be given by the employee’s spokesperson (e.g.,
spouse, adult family member, or other responsible party) if the employee is
unable to do so personally.”

Of course, the employee is obligated to contact the
employer when they are able to do so after the family member has provided
notice. Here, Grace was hospitalized for an extended period of time due to a
mental health condition. In these situations, it’s far better to exercise
patience than to hit the termination button. Clearly, the jury thought so.

Also keep in mind: Where
you have any doubt as to whether the FMLA may cover an absence, the regulations
require the employer to inquire further to determine whether the FMLA covers
the absence. Surely, this was the case here. The employer knew Grace had been
hospitalized, so it can’t stick its head in the sand and presume that FMLA
didn’t apply or that it had no obligation to ask some questions. Candy should
have asked questions of the son, and Carol should have asked Candy just as
many. If Candy didn’t know, she could have returned to the son and started over
again until they were satisfied whether FMLA did or didn’t apply. [Ahem, it
did.]

3. Re-consider your termination decision when you
realize you have fouled up.
The court awarded double damages, in part, because the
employer failed to reconsider its termination decision when the decision-maker
learned that Grace had been in the hospital, making it unlikely that she could
have called in a timely manner from her hospital bed.

Sometimes, we simply have to swallow our pride and
realize we made a mistake. Had the employer done so here, it would have
drastically reduced its damages.

In fact, it likely would have avoided a lawsuit.

At Converge HR
Solutions, we offer an HR Outsourcing service that covers all of your company’s
HR needs. Within this service, there are many different offerings, such as
Training and Regulatory Compliance.
These two specific offerings can play a huge role in assuring that your
managers are properly training to handle any and all obstacles that they may be
faced with, including FMLA, and that all of your documents are updated and
fully compliant.  If you would like to
learn more about what else is included in our HR Outsourcing service, or are
interested in any of the other products and services Converge has to offer,
visit our website at https://convergehrsolutions.com/, email us directly at info@convergehrsolutions.com or give us a call at 610-296-8550.