Companies understandably find employment law to be simultaneously chaotic, complicated, and confusing. And this state of affair certainly applies to the Family Medical Leave Act, (FMLA). This is especially true when it comes to the two distinct type of claims that may be brought under the FMLA and the consequences each type of FMLA claim has on evidentiary issues for employees and employers.
The Two Types of Claims that Can be Brought under the FMLA
FMLA violations can be broken down to essentially two categories: First, under the FMLA it is unlawful for an employer “to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided [by the Act].” 29 U.S.C. § 2615(a)(1).
Second, it is also unlawful for an employer under the FMLA to “discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by [the Act].” 29 U.S.C. § 2615(a)(2).
Accordingly, employers may not discriminate against employees on FMLA leave in the administration of their paid leave policies. See 29 C.F.R. § 825.207(a). Follow this link for more background about the FMLA.
These two statutory provisions give rise to two distinct claims against employers in the Sixth Circuit (the federal jurisdiction applicable to Michigan employers). Specifically, the Sixth Circuit recognizes two discrete theories of recovery when it comes to FMLA lawsuits:
- The “interference” or “entitlement” theory arising from § 2615(a)(1); and
- The “retaliation” or “discrimination” theory arising from § 2615(a)(2).
Different Evidentiary Issues Arise Depending upon the FMLA Claim
For employers, it is important to understand which category of FMLA violation is in play. One reason for making this determination is because the applicable evidentiary proofs are different for interference and retaliation claims; The primary distinction being that an employer’s intent is not considered in an interference claim.
The reason for the different evidentiary standards because an interference claim is based on an employer’s interference with the FMLA-created right to medical leave or to reinstatement following the leave. Thus, a violation has occurred regardless of the intent of the employer.
In contrast, the central issue raised by FMLA retaliation claims is whether the employer took the adverse action because of a prohibited reason or for a legitimate nondiscriminatory reason. Thus, an employer’s motive is always relevant because retaliation claims impose liability on employers that act against employees specifically because those employees invoked their FMLA rights.
Take-aways for Employers
Even if employers don’t always know the answers to FMLA or other employment law questions, it is important for employers to understand – at a minimum – enough to ask the right questions (and then follow up to make sure to get the right answer). For the FMLA, the starting point for this understanding is determining which claim is being made – a retaliation claim or interference claim. For more information about complying with the Family Medical Leave Act, contact Jason Shinn.