family leaveMy last post talked about Diamond v. Hospice of Florida Keys and what the Eleventh Circuit said about FMLA interference claims. As promised, this post will look at the Diamond decision’s take on the FMLA retaliation front.

Refresher on Ms. Diamond’s Case

Recall that Jill Diamond, a social worker for Hospice of Florida Keys, was approved to take intermittent FMLA leave to care for her sick parents. She took some days here and there (hence the term “intermittent”) but then took about 10 days in March and April of 2014. Although Hospice approved her leave, it asked her for receipts to prove she was where she said she was, warned her that her high use of PTO could have an impact on her employment, and gave her a detailed explanation of how her leave was compromising the quality of care. Diamond asked the company to not request documentation beyond what the FMLA allowed and for examples of the compromised patient care her leave was causing. Five days after Hospice provided this explanation (about two weeks after her last leave), Hospice terminated Diamond for poor job performance.

Although the district court granted summary judgment to Hospice on both the FMLA interference and FMLA retaliation claims, the Eleventh Circuit reversed.

Retaliation Claims in the Eleventh Circuit

The Eleventh Circuit explained that to prove an FMLA retaliation claim, a plaintiff must show that her employer intentionally discriminated against her for exercising an FMLA right—and this can be proven with either direct or circumstantial evidence. Under the circumstantial standard, a plaintiff must prove that she suffered an adverse employment decision that was causally related to her exercise of her FMLA rights. Under the familiar McDonnell Douglas standard, the plaintiff must establish a prima facie case of retaliation and then present evidence that the employer’s articulated reasons for the termination were a pretext and the real reason was retaliation.

The Court concluded that Diamond established a prima facie case of retaliation. Diamond’s termination was only two weeks after her last day of leave, which established a close temporal proximity. Additionally, the company’s behavior (e.g., negative comments about the effect of Diamond’s absences on the quality of patient care) reinforced the causal connection between the FMLA leave and her termination.

The company offered a legitimate, non-retaliatory reason for the termination decision—Diamond had “disregard[ed] a direct order from her supervisor . . . and violat[ed] Survey guidelines by leaving the premises during a State Survey without notifying the Clinical Director.” Sounds pretty good. The next question was whether Diamond could present sufficient evidence that the reasons were not true or otherwise a pretext and the real reason was retaliation.

The Court found that Diamond presented sufficient evidence of pretext to survive summary judgment. First, the two reasons (i.e., disregarding the order, leaving the premises) were not even included in the “offenses” listed in Diamond’s termination memo. Second, Diamond had never been disciplined for any of the issues listed in the memo. Third, the HR manager testified that Diamond was terminated for poor performance rather than the two offered reasons. Fourth, the company conceded that the two offered reasons, standing alone, would not support the termination—but were considered in conjunction with her poor job performance. Finally, Diamond offered the evidence of the company’s comments about how her FMLA leave was impacting patient care, which potentially connected her leave to any performance deficiencies.

So What Have We Learned?

As we all know, employees who take FMLA are in a protected classification. While you have to manage the employee’s job performance—even during intermittent leave periods—make sure you focus on the performance and clearly separate it from the leave.

Some lessons from the Diamond decision:

  • If there is a performance problem, be sure to focus on performance while the employee is at work—not what they are not accomplishing because of the leave. In this instance it appears that Hospice tried to do that—focusing on Diamond’s patient care issues, insubordination, etc.—but the court felt that the temporal proximity (two weeks) and the negative comments created a genuine issue of fact for a jury.
  • Think long and hard before you terminate an employee without some intermediate steps. If you find that the employee is stealing and you always fire thieves, fire away. If, however, you find that the employee’s job performance is not great, you may need to issue a warning or two before you terminate. Although the employee could claim that the discipline was retaliatory, it is easier to defend a disciplinary decision.
  • Put some distance between the leave and any ultimate employment action. Firing someone on the heels of leave (or any protected activity) is dangerous. Address the behavior but take a measured approach. Not only will that give the employee a chance to improve (which could happen), it will put some time between the leave and the adverse action. This is more difficult with intermittent leave—because when does the leave actually end? However, it will always play better before the court to show that you disciplined for consistent behavior or performance problems—not all of which occurred during or on the heels of leave.

If someone’s FMLA leave is “contentious”—maybe it was challenging, caused some operational problems, etc.—look closely before taking a subsequent adverse employment action. Those actions almost always end up costing more than expected.


FMLA actManaging intermittent FMLA is every employer’s nightmare (or is it just me?). Employees are entitled to take leave and operations folks find it difficult to keep the trains running on time with employees who don’t show up every day. Employers try to keep a tight rein on it— requiring employees to submit medical certifications, seeking recertification when appropriate, requiring clear recording of each FMLA absence, etc. So when does that tight rein go too far? In Diamond v Hospice of Florida Key, the Eleventh Circuit analyzes both an interference and an retaliation claim—finding the employer went too far (at least too far to get summary judgment). This post will look at the Diamond Court’s discussion of the interference claim and I will address the retaliation claim in a future post.

Facts of Ms. Diamond’s Case

Jill Diamond was a social worker for Hospice of Florida Keys. Her parents were ill, she submitted the appropriate medical certifications, and Hospice approved her to take intermittent FMLA leave. She took leave at different times from June 2013 until February 2014. So far, so good. As per company policy, Diamond used her PTO for these approved absences. Also as per company policy, because her PTO balance was getting low, Diamond got a written notice that her balance was low and continued absences could affect her employment. The notice didn’t mention FMLA—just her low PTO balance. A company witness admitted that such a notice could discourage an employee from taking FMLA leave.

When her mother’s condition got worse, in March 2014 Diamond requested and was approved for a few more days, although Hospice asked her for an updated medical certification. While Diamond was on leave, Hospice got a new HR Manager and the real issues (according to Diamond) began. Not only did the CEO allegedly warn Diamond if she worked for another company she would be out of a job, the HR Manager requested additional documentation, such as receipts for food or lodging or documents from the hospital “to verify where [she] said [she] would be.” Diamond took additional leave when her mother went into the hospital and Hospice asked for additional documentation. Hospice also noted that Diamond’s “continued unpaid time away from the workplace compromises the quality of care we are able to provide as an organization.” Hospice warned her that she might want to conserve her FMLA leave, as it was “running low.” Diamond testified that because of this warning, she did not take available leave and instead made an additional 600 mile round trip to her parents’ home rather than staying longer and providing the care the doctors said her parents needed. The HR Manager also provided examples of how patient care was suffering because of Diamond’s emergency leaves (all FMLA covered).  Five days after this explanation (about 2 weeks after her last leave), Hospice terminated Diamond for poor job performance.

Diamond sued, claiming that Hospice interfered with her FMLA rights and the retaliated against her for taking FMLA leave. The district court granted summary judgment on both claims, Diamond appealed and the Eleventh Circuit reversed.

Interference Claims are More than Just Denied Leave

The Eleventh Circuit started with an explanation of what Diamond must prove to establish an FMLA interference claim: (1) that she was denied a benefit to which she was entitled under the FMLA and (2) that she was prejudiced by the interference. In this case, Diamond got all the leave she requested and was reinstated when she returned—so what’s the problem? The Court found that interference goes beyond denying leave or refusing to reinstate. Citing the regulations, the Court found that discouraging an employee from using leave can be interference. Importantly, the employer’s intent doesn’t matter—only the employer’s conduct and whether it discouraged the employee. Finally, the Court noted that a plaintiff may not need to show denied leave or lost wages to establish prejudice from the interference. If a plaintiff got the leave (and thus did not lose wages), she can show actual monetary losses sustained as a direct result of the violation.

In Diamond’s case, the Eleventh Circuit found ample evidence for a jury to conclude that Hospice potentially discouraged Diamond from taking FMLA leave. Specifically, the Court found that a jury might find that the memo telling Diamond that her continued absences (all FMLA covered) compromised the quality of patient care could have discouraged her from taking more leave. It further noted that the requests for “proof of need”—something above and beyond what the FMLA regulations envision and which would not address whether Diamond’s parent had a serious health condition—could be found to be discouraging. Finally, the Court noted that a jury could believe Diamond’s testimony that had Hospice not been riding her about her excessive leave, she would have taken additional time off rather than make a 600 mile round trip—and award that expense to Diamond.

So What Have We Learned?

Intermittent FMLA is tough to manage. Here are some takeaways:

  • The fact that the employee got all the leave he or she actually requested doesn’t foreclose an interference claim. How you grant the leave can make a difference. If you approve the leave, make sure the supervisor or your approval memo doesn’t send a different, discouraging message.
  • You can request documentation but make sure it goes to the need for leave. You should always require medical certifications but you can’t require a doctor’s note for every absence. Think twice before requiring non-medical justifications—like food and lodging receipts—because they don’t relate to the need for leave. If you have reason to believe that an employee is lying about leave, there may be ways to get verification. In light of this decision, however, a blanket request for receipts is probably not the best route.
  • Be careful when addressing performance issues with employees taking intermittent FMLA as it can look like interference. You have to manage performance, even when someone is taking leave, but make sure that the issues are not simply about the employee’s availability or reliability (which is hard to distinguish from the leave). Focus on what the employee does when she is at work—not that she has been absent.

I’ll say it again, intermittent FMLA leave is tough to manage. Keep in mind, however, that defending an FMLA interference claims is also tough (and expensive) and with the Eleventh Circuit’s new decision elevating discouragement to interference, they just got tougher.

What Employers Can Expect from the New Administration – Part 2: Immigration, the Affordable Care Act & Social IssuesIn our second in a three-part series on what to expect from the Trump administration, we discuss immigration policy and the Affordable Care Act (ACA), as well as what may be in store for parental leave, marriage equality and transgender bathrooms.

1. Immigration

During the campaign, Mr. Trump signaled that his administration would take a tough stance on immigration, promising to “build a wall” along the U.S.-Mexican border and to deport millions of undocumented workers. Pinning down the details of the president elect’s immigration policy has proven to be somewhat elusive, however, and it is too early to make many hard and fast predictions.

That said, it is clear that Mr. Trump’s immigration agenda will significantly impact employers. For starters, we should expect a much more aggressive approach to workplace immigration compliance. Employers should anticipate that Form I-9 audits and investigations will be stepped up — so don’t forget to start using the new Form I-9 no later than January 22, 2017. Additionally, ICE may be given the green light to resume the high-profile worksite raids that were prevalent during the Bush era. The president elect has done little to assuage these kinds of concerns, proposing to hire hundreds of new ICE agents to ramp up the government’s immigration enforcement efforts.

Mr. Trump also has pledged to end the Deferred Action for Childhood Arrivals (DACA) initiative, which the Obama Administration rolled out in 2012. Under DACA (administered by USCIS), more than a half million young, undocumented aliens (the so-called “Dreamers”) have been shielded from deportation and provided legal work authorization. The new president could terminate the DACA program with the stroke of a pen, although his precise intentions are not clear. His options range from simply ordering USCIS not to accept or approve any new DACA applications to more drastic measures, such as revoking already approved DACA applications and work permits or (more drastic still) using the information previous DACA applicants provided to institute deportation proceedings against them. Recently, however, Mr. Trump suggested that his stance on DACA may be softening, stating that he may seek to “work something out” regarding the Dreamers. In addition, last week, a bipartisan bill designed to extend DACA’s protections and benefits for three years was introduced in Congress – although it’s certainly not clear that this legislation has the support needed for passage.

Other changes impacting employers may come later, through some form of immigration reform legislation. Mr. Trump has voiced support for mandating E-Verify for all employers, and it’s almost certain that any proposed legislation will include mandatory E-Verify. Additionally, some of the president-elect’s closest advisors have pressed for changes to the existing legal immigration landscape, including the visa programs commonly used to secure foreign talent. Some of those within Mr. Trump’s inner circle have been particularly critical of the H-1B program for temporary “specialty occupation” workers and have floated proposals designed to make the use of that program more difficult, such as increasing the wage requirements and instituting a labor market test. During the campaign, however, the president-elect was more equivocal about these legal immigration programs, sometimes making remarks that seemed contradictory. At this point, it is not possible to predict how these issues will shake out, but employers certainly need to stay tuned.

2. Affordable Care Act

During the campaign, Mr. Trump consistently stated that he would repeal and replace the Affordable Care Act (ACA). In recent interviews following the election, the president elect has indicated that he would consider keeping certain popular provisions of the Act, such as those preventing pre-existing condition limitations and those allowing coverage of adult children to age 26. These provisions are also generally popular among members of Congress and will likely remain in place. Congress likely will eliminate other aspects of the ACA, such as the employer mandate and the penalties for not offering or providing insurance coverage to employees. A guiding principle for designing a replacement plan could involve encouraging insurance industry competition through mechanisms such as Mr. Trump’s proposal to allow insurance companies to compete across state lines. He has also proposed a few means for reducing the costs of health insurance, including allowing the full deduction of health insurance premiums from taxes and expanding the availability of health savings accounts. In sum, developing and maintaining a system that includes certain popular reforms without coverage mandates will be a challenging task, and it is quite possible that the transition out of the ACA will take a few years.

3. Social Issues Such as Parental Leave, Marriage Equality, and Transgender Bathrooms

Mr. Trump has commented about many other issues that could affect employment policies. During his campaign, he proposed a parental leave policy requiring six weeks of paid leave for mothers following childbirth. This policy would not apply to fathers or to parents who welcome children through adoption or surrogacy. As part of the policy, Mr. Trump has suggested a tax deduction to employed individuals for care expenses for up to four children and elderly dependents.

With respect to same-sex marriage, employers should not expect White House efforts to disturb the Supreme Court’s 2015 Obergefell decision legalizing same-sex marriage. While Mr. Trump did not spend much campaign time discussing LGBT rights, in a recent 60 Minutes interview the president-elect said he did not have a problem with same-sex marriage and felt that the Obergefell decision was settled law, rendering it a non-issue.

Mr. Trump has flip-flopped on the issue of transgender bathroom policy. In the Spring of 2016, Mr. Trump said that he thought that transgender individuals should be able to use whatever bathroom they preferred. Later, however, he criticized President Obama’s executive order requiring public schools to allow transgender students to use the opposite sex’s bathroom and said he thought that individual states should make those decisions. Several weeks ago, the Supreme Court granted certiorari to review a lawsuit that would test the validity of the executive order on transgender bathrooms. If the new president rescinds the executive order, this could moot the case or require the Supreme Court to remand it to the Fourth Circuit for reconsideration.

Stay tuned for our next blog post in this series about expected judicial appointments and future rulings on several employment-related cases. If you have specific concerns or questions, please contact one of the attorneys in Bradley’s Labor and Employment Practice.