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FAMILY AND MEDICAL LEAVE ACT

The Family and Medical Leave Act

The Family and Medical Leave Act (FMLA) is a federal law that allows eligible employees to take up to 12 weeks of unpaid leave from work to deal with medical issues for themselves or their families.

There are 3 kinds of legal claims that employees may have against employers for violation of the FMLA:

  • entitlement;
  • interference; and
  • retaliation.

You might have an entitlement claim against your employer under the FMLA if you’re eligible for medical leave but your company won’t let you take it.

Employees have FMLA interference claims against their employers if the employer tries to interfere with the employee taking leave – by putting up unnecessary roadblocks; threatening them regarding potential consequences of taking medical leave; or trying to give them work or additional things to do while the employee is on FMLA leave.

You might have an FMLA retaliation claim if your employer retaliated against you in any way for taking medical leave – by firing you; reducing your pay; giving you a different, lesser position when you come back; or reducing your hours.

There are 3 requirements for employees to be eligible for leave under the Family and Medical Leave Act:

  • You need to have been employed with your company for at least 12 months;
  • You need to have worked at least 1,250 hours over the past 12 months (that’s about at least 2/3 time); and
  • Your employer needs to be big enough that it employs at least 50 employees within a 75 mile radius of your worksite.

If you’re eligible for FMLA – see above – and you need to take medical leave for yourself or to care for your family, then you need to tell your employer.

You need to clearly tell your employer that you need medical leave for yourself or to care for your family. You don’t need to specifically mention the word “FMLA,” but you do need to give clear notice to your employer that you need medical leave.  Ideally, you should do this in writing – like in an email – so there can be no argument later about whether you gave your employer proper notice.

Then, you need to comply with your employer’s reasonable requests for information.  For example, they may ask for a doctor’s note, or ask you or your doctor to fill out certain forms.  Fill them out promptly and get them back to your employer.

You get 12 weeks of unpaid leave per year.  For intermittent medical leave, employees get the same amount: 480 hours per year (12 weeks x 40 hours per week).

No.  Neither the FMLA or Minnesota Pregnancy and Parenting Leave Act mandate that employers provide paid sick leave.

So the law doesn’t require your employer to provide paid leave.  But your employer might just be generous enough to provide some amount of paid leave on its own: for example, some employers provide some amount of paid maternity or paternity leave when you have a child.

Just fill out whatever forms your employer gives you for its process.  It might give you some forms for your doctor to fill out too – make sure that you fill out all these forms on time and get them in.  If you fail to do so, your employer could argue that you failed to comply with its reasonable leave policies, and then either deny you leave or retaliate against you for taking it.

Does medical leave include pregnancy, maternity, and paternity leave?

Yes.  If you’re eligible for FMLA – see above – then you can use it for medical leave for yourself or to take care of your family.

Employees can take FMLA leave on an “intermittent” basis or on a “reduced leave schedule.”  Intermittent FMLA leave is taken in separate blocks of time for a single illness or injury.  A reduced leave schedule reduces an employee’s usual number of working hours per workweek, or hours per workday.  It can be a change in the employee’s schedule for a period of time, normally from full-time to part-time.

You’re entitled to intermittent FMLA leave when you’ve got a “serious health condition” that renders you unable to do your job, or when an employee needs to care for a spouse, son, daughter, or parent with a serious health condition.

Employees have to give 30 days’ notice for intermittent FMLA medical leave that’s foreseeable that far in advance, or as much notice as possible if it’s not possible to give 30 days notice.

The total amount of medical leave you have under intermittent FMLA leave is the same as normal FMLA leave: 12 weeks in a 12 month period – it’s deducted as it’s used.

It depends.  Employers sometimes use these terms interchangeably and incorrectly.

If an employee is injured on the job, employers will sometimes put him or her on “short term disability.”  That’s fine and appropriate.  But it the employee is eligible for FMLA (has worked there 12 months, at least 1,250 hours, and employer has more than 50 employees), then the “short term disability” leave may also count as FMLA leave – and count against the 12 weeks of available FMLA leave.

That can be both good and bad.  The law doesn’t mandate or protect short term disability leave, but it does mandate and protect FMLA leave.  So if your employer puts you on short term disability and then decides to terminate you after 6 weeks, you’ll have FMLA legal claims for interference and entitlement against your employer even though it didn’t call your leave “FMLA” and instead called it “short term disability.”

The law says that once your employer is on notice that you’ve got a medical condition that qualifies you for FMLA leave, it needs to understand that and comply with the requirements of FMLA.

On the other hand, if your employer puts you on short term disability but you don’t qualify for FMLA (because you haven’t been there for 12 months, worked for 1,250 hours, or your employer doesn’t have at least 50 employees), then you’re not protected and your employer can terminate you at any time – even if it told you that you’re on short term disability.

Entitlement and Interference Claims

These lawsuits are pretty straightforward.  As plaintiff employment lawyers, we first will prove that you were “entitled” to take the FMLA leave by showing that you had worked at your company for at least 1 year; had worked at least 1,250 hours in the past year; and your employer had at least 50 employees within a 75 mile radius of your worksite.  This is pretty easy.

Then we need to show that you gave your employer proper notice that you needed medical leave.  This can be through your testimony that you told your employer you needed medical leave for yourself or to care for a family member.  Or it can be through an email that you sent notifying your employer, or even through constructive notice to your employer, such as notice that you were injured on the job and required medical care.  Again, this is relatively straightforward.

Next, we proceed to show that your employer either denied you leave or interfered in some other way with you taking leave.  Examples of interference include: making threats to you about what will happen if you take leave; telling you not to take leave; or trying to give you work to do while you’re on leave.  If we can show any of these things, then you’ve made an FMLA entitlement or interference claim.

Retaliation claims

Proving an FMLA retaliation claim is very similar to proving up other employment discrimination claims.

Your employer will probably make up and offer a different, non-illegal reason for termination (other than it terminated you or demoted you because you took medical leave).  For example, your employer might claim that it terminated you for poor performance, or say that it underwent “restructuring.”  In order to win on your FMLA retaliation claim, employment lawyers have to prove that the reason offered by the employer is a pretextual reason that is just being said so that your employer can avoid having to say the actual, illegal reason for termination – it was upset that you took protected medical leave under the FMLA.

We’ve got a couple ways to prove pretext on behalf of employees. First, we try to demonstrate that the reason given by the employer is just factually wrong. So, for example, if your employer claims that it terminated you for poor performance, but actually gave you high performance reviews for a number of years and has no written records of ever giving you discipline or counseling, then we’ve created a fact question for a jury regarding whether the reason given by the employer is the real reason for termination, or just pretext to mask retaliation.

Second, we can prove that the reason given by the employer isn’t the real reason for termination because it wasn’t equally applied to similarly situated employees. So, if your employer claims that it terminated you for poor performance, but your peers actually had equal or worse performance reviews than you – or documented performance problems that you didn’t have – than we’ve created a fact issue regarding whether the employer’s stated reason for termination is the actual reason, or just pretext to mask FMLA retaliation.

No.  The FMLA contains an anti-retaliation provision, and so does the Minnesota Pregnancy and Parenting Leave Act.  If your employer terminates you for applying for medical leave – or for complaining that it’s not handling your medical leave request in accord with the law – then you’ve got a retaliation case.

This is absolutely a good question to ask as you make a decision on whether to pursue a case in court or not.  Starting an employment case is a big decision and you should know what your potential return is for the investment of your time and energy.

The short answer is that the value of your case depends on a lot of things, like:

  • the strength of your case on the merits;
  • the amount of damages you’ve suffered;
  • whether your employer has the ability to pay a large amount; and
  • your tolerance for risk.

We get this question so much that we’ve created a separate, detailed page going through each of these factors, right here.  Check it out – it will give you a good idea of what to expect when we talk about your case at your free consultation.

Minneapoolis FMLA Lawyers Gets Results

We represented a woman, “Sarah,” who worked for a health care provider for 12 years.  Sarah suffered a workplace injury when she caught a falling patient.  She was still able to work, and did so for 5 years.  However, she aggravated her back injury in 2014 when she was aiding another patient.  Her doctor told her that she needed time off work to recover from her injury.

After Sarah had used about 8 weeks of her 12 available weeks of FMLA, she was cleared to return to wokr.  However, when she tried to come back, her employer told he that she was terminated because she had “used up” all of her FMLA.

This was an interference and entitlement claim against Sarah’s employer, because Sarah was entitled to 12 weeks of medical leave, but the employer only allowed her 8 weeks of leave before terminating her.

The case settled after depositions but before summary judgment for $200,000.

For FMLA claims, you may be entitled to back pay and front pay damages, liquidated damages, and your attorney fees and costs.  Liquidated damages means that you get to multiply your actual monetary damages (back and front pay) by 2 (that means you get twice what you’re owed in wages).  Unfortunately, the FMLA does not allow for the recovery of emotional distress or punitive damages.

That’s a tough question to answer because there’s really no “average” settlement.  The value of an employment case depends on the strength of the case; the damages the employee suffered; the ability of the employer to pay a large amount (if the employer is insured, even better); and the employee’s tolerance for risk and willingness to go to trial.  Here’s a detailed breakdown of those factors.

First of all, if you’re searching for answers right now, we’re very sorry that you’re in this position.  We know how tough it is to lose your job, especially when you’ve got family and other financial obligations.  It’s especially frustrating and hurtful when the termination is discriminatory.

Second, make sure that take advantage of state benefits designed to help people going through tough times.  Apply for unemployment benefits – here’s a link.  And, contact COBRA to make sure you and your family are covered for health insurance.

Third, write everything down that happened to you.  Write down the date that you were terminated, who terminated you, what they precisely said was the reason for your termination, and who else was present.  Write down whether you think the reason your employer gave you was accurate or not, and why.  Write down the names of employees that you think may have useful information.  Write down the types of documents or emails that you think may have good information about your case.  Write down everything – the reason for this is that your memory will probably fade over time and you want to document things while they’re fresh in your mind.  If you pursue a lawsuit, your trial likely won’t be for at least 12 to 18 months, so you want to have something that you can refer to – write everything down.

Fourth, immediately send a letter or email request to your employer requesting your personnel file and the reason for your termination.  Under Minnesota law, your employer needs to provide it to you.  If your employer hasn’t paid you all of your wages or given you your last paycheck, make sure to request those wages in writing also (by letter or email).

Fifth, call us for a free consultation to talk about your case.

The FMLA is subject to a statute of limitations: this means that you must file suit within 2 years of the last action (termination, interference, denial of FMLA leave, retaliation, etc.) that you believe violated the FMLA.  The statute of limitations is extended to 3 years if the employee can show that the employer willfully violated the FMLA.

Contact Our Minnesota and Wisconsin FMLA Attorneys for a Free Consultation.

All consultations are freeDuring your consultation, we’ll discuss the strengths and weaknesses of your case, the potential value of your case (e.g. how much your case is worth), and the best way to proceed.

There’s some information that we’ll need when you call, so if possible, please have it handy, including: who did you work for what did you do how long did you work there how much did you earn when were you terminated what was the reason given by your employer for your termination and why do you think the termination was unlawful or wrongful. If you have this information handy, it will allow us to proceed to the heart of your case very quickly and give you good legal advice.

The process for a free consultation with our employment lawyers is pretty simple. First, call our firm. You’ll talk to a clerk for about 5-10 minutes. They’ll get some basic information about you and your case.

About 3 or 4 hours later, you’ll get a call from us. If you’ve got a case that’s a little outside our wheelhouse, then we’ll will call you and give you a referral for an attorney that we think is better suited to handle your case. Our number one goal is to make sure you get the best representation possible for your particular matter – if that’s not us, we’ll tell you immediately and get you to someone else that we trust.

If we think that we can help you, then someone will call you and set an appointment for you to talk to one of our employment lawyers. We’ll call you at time that works for you and discuss your case and give you our honest assessment of its strengths, weaknesses, and value. We’ll then set a time where you can come to our office and meet your employment lawyer personally – at that time, we’ll discuss your case in more detail, sign a contingency fee retainer agreement, and talk about the process of moving forward with your case.

When you come in to meet your employment lawyer, please bring all relevant documents that you want us to look at, including: pay-stubs personnel file (if you have it) employment handbook (if you have it) any letters from your employer, including your termination letter any text messages or emails that you think are important and any other documents that you think might be helpful.

THE MADIA LAW WAY

We have a process that works in getting exceptional results for our clients. 

We are trial lawyers who prepare every case for trial from Day 1. Investigation and legal research are the first things we do, and we spend a lot of time on them. Because we haven’t filed the case yet, we have complete control – the defendant has no say and we want to use this time wisely.  We interview witnesses that can help us prove the case.  We’ll ask you for all relevant documents in your possession and review those carefully as well.  We also will spend some time conducting legal research about unique issues in the case.  We pull the jury instructions that the judge will ultimately charge the jury with after closing arguments at trial. 

Our next step is typically to send a demand letter to the defendant. In the letter, we thoroughly lay out: the facts surrounding the defendant’s misconduct; the applicable law (including statutory and case citations) that make clear that the defendant broke the law; an analysis of your damages and the defendant’s monetary exposure; a demand for a monetary amount to settle the claim; and an instruction to preserve all relevant evidence, including electronic evidence. The point of this letter is to give the defendant a chance to do the right thing and pay a fair amount before litigation, and to give the defendant an opportunity to present any defenses or evidence it wants us to consider before moving forward.  Sometimes we skip the demand letter if there are strategic reasons to move straight to filing, but we typically give defendants a chance to do the right thing.

If early negotiations fail, great – we file a Complaint and serve the defendant with it. A Complaint is a legal document that states the facts of what happened and alleges how the defendant broke the law. It formally starts the lawsuit.  Many lawyers draft complaints in a general and relatively vague way, just to get it done and filed – because that’s all that’s really required.  We take a different view. We view the Complaint as our first chance to tell your story to the judge, and we take it seriously. So we draft detailed complaints and include legal citations to statutory and judicial authority on unique points.  Sometimes we’ll include a number of exhibits, diagrams, or other demonstrative aids to help the Court understand our claims.  A secondary benefit of this approach is that defense lawyers reading the Complaint can become educated on the problems of their case and the state of the law – sometimes this leads them to reach out to us shortly after service of the Complaint to re-initiate settlement negotiations.  Of course, by that time, the price for settlement has gone up.

Some lawyers view written discovery as a necessary evil – something to get done and out of the way before depositions.  Not us.  Written discovery is a gift and an opportunity.  We spend a great deal of time crafting requests for documents and interrogatories (questions for the defendant to answer in writing) that are specific, detailed, and tailored to get what we need to prove our case.  Many lawyers – even great ones – think written discovery is a waste of time because defense lawyers typically answer them on behalf of their clients and can try to stonewall with legalese and objections.  We view this as a wonderful opportunity.  In our experience, most defense lawyers can’t help themselves when answering discovery: they over-state their defenses and make assertions that their clients will not be able to support in testimony. So we get to commit the defendant to defenses that they can’t back up, leading to contradictions, confusion, and chaos in their depositions later on.  We also use Requests for Admission – which many lawyers don’t.  The Federal Rules and Minnesota Rules of Civil Procedure allow us to ask defendants to “admit” certain facts.  We send them RFAs that are very difficult for them to deny.  Of course, they do it anyway, but that sets them up later for cost and fee-shifting, which the Rules mandate for defendants that deny RFAs that are later proven true.  And usually, we can get the defendants’ own witnesses to admit facts that their defense lawyers denied in RFA.  That’s a great situation that leads to more chaos and confusion on the defense side.

One last point on written discovery – we send multiple waves of it throughout discovery.  We typically send 3 or 4 sets of written discovery requests to defendants throughout discovery.  This compounds the problems for them, because the defense lawyers continue to overstate their defenses, but now run into contradictions from not just the defendant witnesses’ deposition testimony, but also their own previous discovery responses.  This makes for a great record that we can present to the judge at dispositive motions, and use for impeachment at trial.

This is our chance to question relevant witnesses, on the record with a court reporter (we typically videotape important depositions as well). We get to confront the defense witnesses with all of the evidence we’ve developed through written discovery and document production. By this time, the defendant put its witnesses in an impossible position through its written defenses, which are often untrue and indefensible.  So the witness has to either lie to support the defense, or admit it’s not true.  That’s a dilemma that works for our clients either way, no matter which option the witness takes.  We use depositions to expose contradictions, create a record for dispositive motions, lock witnesses into their stories so that we can impeach them later at trial, and sometimes, to show defense lawyers how hopeless their case is.  We often calls from defense counsel shortly after depositions of their clients, seeking to re-start settlement negotiations.

The defendant will usually make a motion for summary judgment after discovery, asking the Court to throw out the case without having a jury trial. Because we’ve hit discovery so hard – both through written discovery and depositions – this is a tough motion for defense counsel to write in our cases.  We draft our response for the Court and now get to bring everything together: the admissions, contradictions, nonsense, and obvious fact disputes that we’ve uncovered through discovery.  We tell a compelling story that wraps everything together for the Court and makes clear that the defense motion has to be denied, and the defendant needs to face a jury for its conduct.

Sometimes, we’ll even make an affirmative motion for summary judgment, asking the Court to grant judgment in favor of our client without a trial. These motions are generally rare for plaintiffs to make, because the defendant can usually point to some fact dispute on its intent or some other factor that necessitates a trial. But we make affirmative summary judgment motions significantly more than is typical for plaintiffs, and that’s because the work we put in during discovery helps build a fantastic record to do so.

After the Court denies the defense motion for summary judgment, the defendant has only 2 options: 1) do the right thing and pay you a fair amount to our client to settle your claim (usually much, much more at this point than the defendant could have paid at the beginning of the case to settle); or 2) face a jury for its conduct and risk an enormous verdict. This is the dilemma that we have been creating and forcing the defendant into for the entire case. We’ll engage in settlement negotiations at this point from a position of extreme strength, mainly because most defendants are (rightly) terrified of facing a jury to defend their conduct.

This is, candidly, our favorite part of the case – why we went to law school: to hold the powerful accountable before juries.  We prepare heavily for trial, including: detailed witness preparation, focus groups, and mock trials.  At this point, the potential outcomes and consequences for the defendant are much more severe than if it simply did the right thing at the beginning of the case and paid a fair amount to compensate our client for its misconduct.  As we advocate to the jury for our client, we’re also mindful of protecting the record so that defendants will be unsuccessful in attacking the verdict in post-trial motions or appeal.

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