Out of time: Employees don’t have forever to file FMLA claims

Statute of limitations allows up to two years from alleged violation

Posted November 6, 2015

If an employer violates the Family and Medical Leave Act (FMLA), an employee does not have unlimited time to call them on it with a claim. Any later punishment imparted on the basis of an unclaimed violation does not necessarily reset the statute of limitations clock. This can happen, for example, if an employee is terminated for violating an attendance policy, when some of the attendance issues might have been for an FMLA-qualifying reason. If the employee is terminated years after the latest assumed violation, it may be too late for the employee.

Case in point

Under a company’s attendance policy, if employees accumulated 12 unauthorized absences from work, they could be fired. Unauthorized absences accrued, but were automatically expunged if the employee had a clean attendance history for 24 consecutive months.

An employee accrued 12 unauthorized absences and was terminated. She claimed, however, that three of the absences were for FMLA-qualifying reasons. Unfortunately, the three absences occurred in 2003, 2004, and 2005. The employee was fired in 2010, and she filed suit in 2012.

The FMLA includes a statute of limitation:

“…an action may be brought…not later than 2 years after the date of the last event constituting the alleged violation for which the action is brought.”*

The employee argued that the limitations period began to run when she was terminated in 2010. Therefore, her suit was timely. She insisted that although she could have filed suit at the moment she was denied leave, she wasn’t required to file suit at that time. She could file a claim several years later when she was fired for accumulating too many unauthorized absences; she argued that the termination was the last event constituting the FMLA violation, and it reset the clock.

The employer argued that the alleged FMLA violations accrued many years earlier when the employee was denied the leave, so the claim was time-barred.

The court found that the last event constituting the claim ordinarily will be the employer’s rejection of the employee’s request for leave. Each time the employer denied the employee the FMLA leave (in 2003, 2004, and 2005), the limitations clock reset. It indicated that accepting the employee’s argument would mean that an employee at this company who was denied leave for her first absence could theoretically wait nearly 24 years before she would have to litigate the claim.

Therefore, a negative employment action based on a violation, but taken years after the latest violation, can be defended by the statute of limitations.

*For willful violations, the limitations period is extended to three years.

Barrett v. Illinois Department of Corrections, Seventh Circuit Court of Appeals, No. 13-2833, October 20, 2015

FMLA EssentialsJ. J. Keller's FMLA Essentials manual helps HR pros understand and comply with the requirements, control costs related to leave taken and minimize the law's potential disruption to their organizations' operations.


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