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Why FMLA claims can be so daunting: Double damages

Case involving leave and termination costs employer twice as much

Posted April 17, 2017

A recent court case reminded employers that failure to comply with the provisions of the Family and Medical Leave Act (FMLA) can lead to double damages, particularly if the employer is found to have had a lack of good faith effort toward such compliance. Such situations are not rare, not by a long shot.

The particular case revolved around an employer who was looking at a reduction in force (RIF), and an employee who requested time off for surgery. Here’s what happened:

The employee (Biff) was one of many employees targeted in the RIF. Biff, unaware of his inclusion in an upcoming RIF, requested time off for surgery; he also asked about short-term disability.

The decision to include Biff in the RIF was made weeks before anyone (including Biff) knew he would need time off. Biff, however, was originally slated to be terminated in March, but in mid-January (two days after he requested time off), the company decided to move up his termination to February. In fact, he was terminated on February 9.

Biff sued, arguing that the employer interfered with his FMLA rights when it terminated him. The employer argued that Biff did not provide a notice of the need for leave. It also tried to argue that the decision to terminate Biff was made before he knew he needed surgery.

The court found the employer’s arguments unconvincing. Biff had asked about short-term disability, which usually involved needing time off for a medical condition — one that could very well be a serious health condition for purposes of the FMLA. Therefore, the court concluded that asking for short-term disability was enough to put the employer on notice of the need for leave.

The court also did not look kindly on the company moving Biff’s termination date up by a month. The timing looked suspiciously like the company was using his request for leave as a basis for making this negative employment decision.

Because the employer showed a lack of good faith effort to comply with the FMLA — between not recognizing a request for disability as notice of the need for leave and the timing of the termination decision — the court saw fit to double the damages. Therefore, the price tag of the case went from $77,007 to $154,014.

The court pointed out that to avoid such situations, employers should:

  • Have a subjective intent to comply with the FMLA (have an honest intention to act in accordance with the law); and
  • Act objectively reasonable in its application of the FMLA (have reasonable grounds for believing its conduct complied with the law).

If you try to hide behind an argument that you honestly didn’t recognize an obvious request for leave (or violate other provisions of the law), you, too, could be liable for extra damages.

Crain v. Schlumberger Technology Co., Eastern Disctrict of Louisiana, No. 15-1777, February 23, 2017

This article was written by Darlene Clabault of J. J. Keller & Associates, Inc.

Family and Medical Leave Act (FMLA) Consulting ServicesJ. J. Keller's Family and Medical Leave Act (FMLA) Consulting Services can help your company ensure compliance with FMLA requirements and minimize the law’s burden to your organization.


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