This is a VERY long post, so skip if uninterested. I'm mostly posting it here for posterity's sake, as anything uploaded on the Internet lasts forever. You've been warned.
MEMORANDUM
TO: Senior Partner
FROM: XXX-XX-XXX
DATE: March 29, 2006
RE: Magnum Millwrights, Inc. (legality of Mr. Sorenson’s termination)
Issue Whether Magnum Millwrights, Inc. could legally terminate Mr. Sorenson under the Family Leave and Medical Act (FMLA).
Brief Answer Likely. Although Mr. Sorenson’s injury qualified as a “serious health condition,” the court will probably determine that he failed to provide the requisite notice. As a result, he was properly terminated for breaching the agreement between Magnum and the Amalgamated Tradesmen’s Union.
Facts Magnum Millwrights, Inc. (hereinafter “Magnum”) is a cabinet and shelving manufacturer. Mr. Sorenson was an employee of Magnum from August 12, 1998 until December 15, 2006. As a non-management employee, he was represented by the Amalgamated Tradesmen’s Union (hereinafter the “ATU”). Under an agreement with the ATU, any employee who accumulates eight unexcused absences in a calendar year is terminated. At the time of the incident in question, Mr. Sorenson had 7 unexcused absences.
On December 8, Mr. Sorenson was injured while stacking lumber on a conveyor system. As a computer systems expert for the company, he was acting outside the scope of his employment. He also violated safety regulations by not turning off power to the conveyor system or placing a lock on the power switch to ensure that it remained in the off position. These violations directly contributed to his injury. At the hospital, physicians determined that he had broken a number of bones in his hand and scheduled surgery for the next day. After routine surgery on December 9, Mr. Sorenson went home.
The agreement between ATU and Magnum provides that an employee who can do so must call the human resources office as soon as the employee knows he or she will miss work. No one at Magnum heard anything from Mr. Sorenson for a week. Mr. Sorenson was terminated on December 15 for missing 8 unexcused days in a calendar year. On December 16, he reported to work and was told he had been terminated.
Discussion Although the FMLA is a recently new piece of legislation, it has been heavily contested in the courts since its 1993 inception. Furthermore, adoption of the pertinent Code of Federal Regulations has clarified much of the ambiguity present in the United States Code. Courts frequently turn to these regulations, as well as the burgeoning case law, when determining the outcome of FMLA-related claims.
The court will likely engage in the following analysis to determine whether Mr. Sorenson’s termination was allowed under the FMLA: 1) Does Mr. Sorenson’s condition qualify as a “serious health condition,” 2) did Mr. Sorenson provide adequate notice, and 3) did Magnum fulfill its responsibilities to Mr. Sorenson? Pursuant to this analysis, it will be necessary to discuss 4) the potential liability to our client if it is determined that Magnum violated the FMLA.
1) Does Mr. Sorenson’s condition qualify as a “serious health condition?” The FMLA defines a “serious health condition” as an illness or injury that involves inpatient care in a hospital and continuing treatment by a health care provider. 29 U.S.C § 2611 (11) (2000). Inpatient care is generally defined as being admitting to the hospital and remaining there overnight. Mr. Sorenson’s stay on the night of December 8 and his three subsequent visits to his physician for X-rays and cast changes will likely meet this FMLA requirement.
However, since “the goal [of the FMLA] is not to supplant employer-established sick leave,” it is questionable whether FMLA applies to inpatient care that occurs simply because no doctor was on duty. Satterfield v. Wal-Mart Stores, Inc., 135 F.3d 973, 981 (5th Cir. 1998) (quoting Price v. City of Fort Wayne, 117 F.3d 1022, 1023 (7th Cir. 1997). In the same vein, FMLA should not be applied because Magnum’s group health insurance coverage would have covered the nature of Mr. Sorenson’s accident, thereby rendering moot the intended purpose of the Act. The fact that several employees at Magnum have serious health problems and have not been terminated should help augment this line of reasoning in court.
The strength of this argument will hinge on the judge’s interpretation of the Code, but it is evident from case law that judges generally rule (even if grudgingly) according to the text of the FMLA. In one case, a judge hesitated to define a condition involving strep throat as a “serious health condition,” even though it was within the textual definition of the C.F.R. The judge noted that the flu, which is more serious, is specifically excluded from the FMLA, whereas strep throat is not. Even after this analysis, however, he accepted the broadened Congressional definition and concluded that the condition qualified as “serious” for the purposes of the FMLA. Brannon v. OshKosh B’Gosh, Inc., 897 F.Supp. 1028 (M.D. Tenn. 1995).
There is an opposing policy argument. Mr. Sorenson’s health condition was caused by his own negligence. None of the case law presented specifically addresses this situation, but it is clear that one of the purposes of the FMLA is to provide leave for employees “in a manner that accommodates the legitimate interests of employers.” 29 U.S.C. § 2601(b)(3) (2000). Is it in the legitimate interests of employers to retain workers who negligently injure themselves on the job? Courts have shown that they are wary to implement policies that would be “unduly burdensome for employers.” Satterfield, 135 F.3d at 981. The success of such a policy argument will depend on the judge’s determination of the Act’s intended purpose.
2) Did Mr. Sorenson provide adequate notice? Both the FMLA and the applicable case law require notice. Since it is undisputed that Mr. Sorenson’s accident was unforeseeable, the courts will likely turn to the Code of Federal Regulations for clarity. The Code holds that when leave is unforeseeable, an employee should give notice requesting FMLA coverage “as soon as practicable under the facts and circumstances of the particular case.” 29 C.F.R. § 825.303 (2005). The Code continues by stating the expectation is to give notice within no more than one or two working days after learning leave is needed, except in extraordinary circumstances. Id.
It is unlikely that the court will view Mr. Sorenson’s circumstances as extraordinary. He was admitted the hospital, kept overnight, and had routine surgery the next morning before going home. It is undisputed that he made no contact with Magnum for a week after the accident. A broken hand is not enough to warrant silence. The Code sets out a variety of ways in which Sorenson could have elected to contact Magnum: in person, by telephone, by fax, or through a spokesperson. 29 C.F.R. § 825.303(b) (2005). The Satterfield Court noted that the employee had access to a phone on numerous occasions, called her mother, and yet did not attempt to contact the store. Satterfield, 135 F.3d at 979.
Opposing counsel will likely insist that circumstances of the case are such that the plant physician provided constructive notice to Magnum when he told Mr. Gonzales that if Mr. Sorenson’s hand was broken, he would likely be out for a week or two. Under this theory, they would argue that the plant physician acted as Mr. Sorenson’s spokesperson. 29 C.F.R. § 825.303(b) (2005). The FMLA does not support this argument. The plant’s physician told Mr. Gonzales that he “didn’t know for sure” the extent of Mr. Sorenson’s injuries, thus his role as a spokesperson is flawed- his information (and lack thereof) did not trigger FMLA leave. Mr. Sorenson’s injuries were not determined until a later date. The purpose of notice is to avoid this exact type of ambiguity and confusion. It is clear that the employee or spokesperson need not mention the FMLA, but they must “state that leave is needed.” 29 C.F.R. § 825.303(b) (2005). No one ever told Mr. Gonzales or Magnum that leave was needed. It was only suggested that it might be needed, a statement which is always true.
As if anticipating this exact scenario, the Code explicitly states that “the employer's designation decision must be based only on information received from the employee or the employee's spokesperson…” 29 C.F.R. § 825.208(a) (2005) (emphasis added). Thus, under a plain reading of the law, only information forthcoming from Mr. Sorenson or his spokesperson can be used to make an FMLA determination. What Mr. Gonzales or the plant physician witnessed or surmised is not legally sufficient to trigger notice.
Case law has repeatedly stated that notice must be specific enough to warrant FMLA protection. In Satterfield, the employee stated that she “had pain in her side and would be unable to report to work,” and the Court held that such a statement was not adequate. Satterfield, 135 F.3d at 980. In a similar case, an employee contacted Ford’s Labor Relations Department three times stating he was sick and unable to report for work, and the employer was granted summary judgment on the notice issue. Carter v. Ford Motor Co. 121 F.3d 1146 (8th Cir. 1997). Here, Mr. Sorenson failed to contact Magnum with any information regarding his injury, and the statements of the plant physician are equivocal at best. This would certainly fail the Manuel test as outlined in Satterfield, which asks whether any rational trier of fact could determine that the employee’s acts reasonably apprised the employer of the need to take leave due to a serious health condition. Satterfield, 135 F.3d at 980.
Since the court will look at each case individually, it is clear from the case law that two facts about Mr. Sorenson’s work record with the company will be pertinent to the court’s analysis concerning notice. It is undisputed in the record that Mr. Sorenson had 7 unexcused absences before the accident. Witnesses have even heard him boast about how he likes to take time off simply because he can. This understandably clouds our client’s judgment as to whether Mr. Sorenson is in fact seriously injured or just taking another unpaid day off from work. Courts have been willing to accept this argument. Satterfield, 135 F.3d at 983. Furthermore, the fact that Mr. Sorenson had successfully applied for FMLA earlier in the year demonstrates that he understood the procedure. Courts are unwilling to assume employee ignorance about FMLA procedures when a prior, successful use of the statute can be shown. Id. at 980.
However, more than mere notice is required under the FMLA. 29 C.F.R. § 825.302(c) states that "an employee shall provide at least verbal notice sufficient to make the employer aware that the employee needs FMLA-qualifying leave, and the anticipated timing and duration of the leave." (2005, emphasis added.) In Collins v. NTN-Bower Corp., (quoting Satterfield), it was determined that this section applied to unforeseeable leave. Collins, 272 F.3d 1006 (7th Cir. 2001). Applying this rationale, the court in the Collins decision held that FMLA requires that an employee not only supply notice, but also give an idea into how much leave is needed. Id. at 1008. No one provided this information to Magnum.
It is likely that opposing counsel will contend that 29 C.F.R § 825.302 was written to cover only those circumstances in which advance notice is possible. However, in Collins, the courts agreed with the Satterfield opinion when it reiterated that the Section covers “all particulars of notice, and 29 C.F.R. § 825.303 states an exception to the timing rule. Collins, 272 F.3d at 1008. Thus it is clear that although the accident was unforeseeable, Mr. Sorenson was still required to inform his employer of both the need and estimated duration of the leave.
3) Did Magnum fulfill its responsibilities to Mr. Sorenson? It is undisputed among the parties that Magnum has properly posted FMLA notices as required by law. Furthermore, Magnum provided Mr. Sorenson with a notice of FMLA rights roughly a month before the accident took place.
With that determined the court will likely look at the relationship between the FMLA and the ATU. The Gilliam Court held that “nothing in the FMLA or the implementing regulations prevents an employer from enforcing a rule requiring employees on FMLA leave to keep the employer informed about the employee's plans.” Gilliam v. United Parcel Service, Inc., 233 F.3d 969, 972 (7th Cir. 2000). This statement is potentially devastating to opposing counsel, as it could foreseeably allow Magnum to terminate Mr. Sorenson for not meeting employer requirements even if FMLA had been triggered. Since it is unclear whether or not FMLA applied to Mr. Sorenson’s case, this makes his responsibilities to Magnum even more pertinent. Employees at Magnum have a duty to call the human resources office as soon as they know time off is needed. Mr. Sorenson did not contact anyone at Magnum for a week. Clearly he was in violation of the agreement, irregardless of FMLA procedures. This would, theoretically at least, give Magnum a substantive right to terminate Mr. Sorenson, even if notice had been given. The Carter Court seems to intimate that even if notice had been given, the employee still had a duty to conform to company procedures. Carter, 121 F.3d at 1147. One cannot leave a place of employment, ignore company procedures, and then march back in under the banner of the FMLA.
The court will also look at the ATU’s position regarding Mr. Sorenson, as their actions toward their members are given broad latitude and treated with deference. Id. at 1149 (quoting Air Line Pilots Ass'n, Int'l v. O'Neill, 499 U.S. 65, 78 (1991). It is clear from the union representative’s statements that although they might file a grievance, he didn’t see how the ATU could successfully reinstate Mr. Sorenson. Although such an opinion is somewhat ancillary to the FMLA analysis, it shows that the ATU agreed with Magnum’s actions. This lends credence to the position that Mr. Sorenson breached the agreement.
Opposing counsel might point to 29 C.F.R. § 825.305(a), which requires a company to provide a medical certification form each time one is required for the FMLA. Magnum did not provide this certification form after the accident. However, since FMLA leave was never triggered, Magnum had no foreseeable reason to release the form to Mr. Sorenson. The Stubl Court placed the initial onus of notice on the employee, then shifted the burden to the employer to inquire into FMLA leave and provide the necessary forms. Stubl v. T.A. Systems, Inc., 984 F.Supp. 1075, 1089 (E.D. Mich. 1997). It then follows that if notice had not been triggered, the company would have no responsibility to produce the necessary documents. Thus this argument hinges on whether Mr. Sorenson provided notice. The court, as stated above, will likely conclude that he did not.
Magnum could also benefit from shifting the FMLA dialogue by articulating legitimate, non-discriminatory reasons for his termination which Mr. Sorenson cannot show to be pretextual. Id. at 1091. If Mr. Sorenson does not know exactly why he was fired, it would behoove Magnum to amend the decision (if within its legal rights) to include any reason for a possible dismissal under the Agreement. It is important to note that Magnum need not convince the Court that they were motivated by the actual reasons, so long as the reasons legally justify the termination. Id. at 1091. Possible reasons for termination that should be explored include negligently operating the conveyor system and acting beyond the scope of his employment.
4) What is Magnum’s potential liability if Court determines they violated the Act? As improbable as it might be, potential liability should be briefly discussed in order to better prepare Magnum. An employee who takes FMLA qualified leave is entitled to return to the same position he left or one with equal pay and benefits. Also, his medical expenses are to be covered under the pertinent group health plan at Magnum. 29 U.S.C. § 2614 (2000).
At trial, Mr. Sorenson could be awarded the wages he would have earned while out plus interest, in addition to liquidated damages that would effectively double the award. 29 U.S.C. § 2617 (2000). Since Mr. Sorenson left in December and brought Action in late February, there could be a sizable amount of money at stake. However, there is an excellent chance that the court would find that Magnum had a “good faith” reason to believe it was not violating the FMLA, thus dismissing the liquidated damages. Id. The combination of Magnum’s compliance with FMLA regulations, lack of verbal notice on Mr. Sorenson’s part, and the ATU’s tacit acceptance of the termination all point to such a ruling.
However, if victorious, the court will likely award him reasonable attorney’s fees. Id.
Conclusion Upon close examination, it is clear that Mr. Sorenson did, in fact, suffer from a “serious health condition” as outlined in the C.F.R. He spent the night in a hospital and subsequently visited a doctor numerous times. Although courts are hesitant to broaden the scope of the FMLA to cover all situations that would fit under its umbrella, they generally will. Even more importantly, they show a disfavor in letting this issue be the one that eventually determines the outcome of the case. Our best option is to advocate strongly the intended goal of the FMLA, and argue that it was not designed to cover this particular situation. It is a somewhat compelling argument to make, but one that will probably fail. In this instance, most courts feel forced to accept the Congressional limits, as they have little power to change it.
Under a clear reading of the statutes in question and the C.F.R., it is evident that Mr. Sorenson failed to provide any type of actual notice. He also failed to follow company regulations when he failed to contact the human resources department after the accident. As courts tend to narrowly construe the textual intent of the FMLA, it is unlikely that they will rule in Mr. Sorenson’s favor. His best chance of victory lies in a policy-oriented arguments that the courts (at least from the cases provided) have been wary to accept.
Lastly, it is clear that Magnum met its responsibilities regarding Mr. Sorenson. They
posted all FMLA notices and even personally handed Mr. Sorenson a copy of his rights a month before the accident. As such, they were legally compelled to do nothing more until Mr. Sorenson contacted them with information regarding his condition that would reasonably trigger FMLA protection.
