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What Happens When Employees Mischaracterize FMLA Leave?

Last week, we wrote about employees' rights under the FMLA to take medical leave when certain health emergencies impact the employee or the employee's immediate family. Of course, the leave is not automatically allowed for any cough or cold. Any employee seeking to take FMLA leave must be doing so for a qualifying reason, and the employee must take certain steps to inform the employer of the need for such leave. As a recent Ninth Circuit case illustrates, juries may not be receptive to an employee who attempts to improperly mischaracterize time missed as FMLA leave.

In Escriba v. Foster Poultry Farms, Inc., (9th Cir. Feb. 25, 2014), an 18-year employee was terminated for failing to comply with her employer's "three day no-show, no-call rule" after she had taken time off to care for her sick father in Guatemala. Though her employer agreed her father's ailment was an FMLA-qualifying reason for taking leave, there was a dispute as to whether she declined to have her time off characterized as FMLA leave. Due to this apparent lack of communication, she was terminated and the issue of what she said to her supervisors went before a jury. Ultimately the jury found in favor of her employer, but the employer was not allowed to tax the costs of the case to the plaintiff.

This case provides two important lessons for employers. First, it serves as a reminder that even when your case is a winner, fighting employees in court can get extremely expensive. Unfortunately, these costs will not always be passed off win or lose.

Additionally, however, it shows employees are not allowed to retroactively mischaracterize unauthorized periods of leave as FMLA leave. Cases like this can largely be avoided before they get exorbitantly expensive by properly documenting conversations with employees regarding periods of leave. You should contact an employment dispute attorney to determine the documentation practices that can help you avoid these situations and expenses going forward.

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