Failing to provide employee notices can be costly

Posted January 5, 2018

Some employers might think that providing the eligibility/rights & responsibilities to employees is not a big deal. Failing to do so, however, can be a big deal, as one employer learned the hard way. Even if an absence has other benefits applied, such as in situations involving workers’ compensation, the FMLA could still be in play and, therefore, the eligibility/rights & responsibilities notice must be provided.

Case in point

Herkimer, an employee who had been working for the company for many years, took a tumble down the stairs at work, and suffered injuries to his neck, shoulders, and back. He reported the fall immediately to his supervisor and also requested medical treatment.

The company responded appropriately when it came to the workers’ compensation claim, as Herkimer took time off for medical visits to treat headaches and other pain associated with his injuries. He continued to ask for time off for such appointments.

The employer, however, never provided Herkimer with an FMLA eligibility/rights and responsibilities notice. It figured that Herkimer’s time off was protected by the workers’ compensation laws. Not quite a year after the fall, the employer terminated Herkimer, citing that he did not make his quota.

Unhappy with such a turn of events, Herkimer sued, arguing that the employer interfered with his FMLA rights in part because it did not provide him with the required eligibility/rights and responsibilities notice. Herkimer was never made aware of his FMLA rights.

The employer argued that, even if it failed to provide Herkimer with such notice as required under the FMLA, no cause of action exists for mere technical violations of the notice requirement. Herkimer countered that the damages he sought were properly recoverable under the FMLA.

The court agreed with Herkimer, indicating that failure to provide the notices may qualify as actionable interference, restraint, or denial of an employee’s FMLA rights, entitling an employee to damages or equitable relief.

The regulations bear this out. If an employer fails to follow the FMLA notice requirements, “the employer may be liable for compensation and benefits lost by reason of the violation, for other actual monetary losses sustained as a direct result of the violation, and for appropriate equitable or other relief.” Herkimer pled that he was damaged as a result of the employer’s failure to notify him of his FMLA rights, and the court agreed.

Therefore, the next time you think those pesky FMLA notices (the eligibility/rights and responsibilities notice and the designation notice) are not really worth worrying about, you might want to think again. Such a failure might not be seen as a mere “technical” violation, but one that could result in a potentially large price tag.

Canigiani v. Banc of America, S.D. Fla, No. 17-cv-61270, October 3, 2017

This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc.

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