Retaliation law is one of the most developing (and dangerous) areas of employment law. I recently spoke at the West Virginia Employment Lawyers Association’s annual conference on retaliation law, and I wanted to go back and discuss an important Fourth Circuit decision on the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq.
Dotson v. Pfizer: Adoption and the FMLA
The decision is Dotson v. Pfizer Inc., 558 F.3d 284 (2009), and involved allegations of retaliation stemming from leave taken for an international adoption from Russia.
The jury awarded $1,876 in damages on the FMLA interference claim and $331,429.25 on FMLA retaliation claim. The judge then awarded $333,305.25 in statutory liquidated damages, $375,000 in attorneys’ fees, and $14,264.88 in court costs. Both sides appealed. The Fourth Circuit rejected all aspects of the employer’s appeal, but found the trial court made a mistake in refusing to award the plaintiff pre-judgment interest.
Employees Don’t Have to Expressly Invoke the FMLA on Leave Requests
Part of the significance of the Dotson case is that the Fourth Circuit held that the employee, to invoke rights under the FMLA, need only tell the employer of the need for leave that is covered by the FMLA -the employee need not expressly invoke the FMLA as the basis or justification for the leave. The employer then has the duty to examine the situation and determine whether the requested leave implicates the employee’s FMLA rights. Here is an illustration of the 2 different possible requirements that were in issue in Dotson:
- Employee’s position on notice: Employee says: “Boss, I need some time off for the international adoption my wife and I are involved in. We have a meeting with the adoption agency tomorrow afternoon, and I’d like to take the afternoon off.” This is the only notice that the employee contended was necessary in order to invoke FMLA rights, and the Fourth Circuit agreed, based on a review of the case law and the applicable regulations. After the employee makes this request, the ball is in the employer’s court to figure out whether the leave is covered by the FMLA.
- Employer’s position on notice: Employee says: “Boss, I am requesting FMLA leave. I need some time off for the international adoption my wife and I are involved in. We have a meeting with the adoption agency tomorrow afternoon, and I’d like use my FMLA leave to take the afternoon off.” This is the notice the employer contended was necessary. The employer contended that, at least in the setting of adoption leave, the employee must specifically tell the employer that the employee wants to take FMLA leave. The Fourth Circuit rejected this argument, and rejected the need for the employee to specifically invoke the FMLA.
Part of the further significance of Dotson is that the principles of notice discussed above apply to a retaliation claim under the FMLA. Dotson asked for and was given leave for his adoption, and he got fired shortly after returning to the United State from Russia on his adoption. He filed suit and won on the contention that Pfizer fired him in retaliation for him taking FMLA leave. Pfizer contended: “hey, we can’t be liable for FMLA retaliation, because he never told us he was taking FMLA leave–he only said he wanted time off for the adoption.” The logic of that argument is, “we can’t be liable for retaliation where he didn’t specifically invoke the FMLA right”. The trial court and the Fourth Circuit both disagreed with the employer, and held that a retaliation claim may be viable even where the employee only said he wanted time off for the adoption–without specifically invoking the FMLA.
Lessons from Dotson v. Pfizer
So the request from the employee for covered time off (such as for an adoption), without expressly invoking the FMLA, raises two issues for employers:
- The employer must assess the request for time off and determine whether it invokes the rights under the FMLA.
- The employer must be aware of the fact that, once it determines that the request for time off is covered by the FMLA, any adverse action taken against the employee could give rise to a retaliation claim, even where the employee never mentioned the FMLA in connection with requesting the time off.
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