A recently decided case has significant implications for employers because it will make it easier for employees bringing Family and Medical Leave Act (FMLA) retaliation claims to get to a jury trial. One of the key issues in most retaliation cases is “temporal proximity” – whether the action by the employer came close enough in time to the protected activity to permit a jury to conclude that the action was retaliation for that activity. A recent ruling by the U.S. Court of Appeals for the Eleventh Circuit (the federal appellate court covering Georgia, Alabama, and Florida) clarifies when to begin measuring temporal proximity to evaluate this causation determination in FMLA retaliation cases. The opinion in Jones v. Gulf Coast Health Care of Delaware, LLC explains that temporal proximity must be measured from the end date of the employee’s FMLA leave through the date of the adverse employment action. This holding overrules prior (non-published) decisions measuring the time period from the beginning date of the employee’s FMLA (which was a more favorable analysis for employers).

Background Facts

The case involved Rodney Jones, an activities director at a nursing home. While his job was mostly desk work, he also handled events and programs for the facility’s residents. So, he had to be able to perform some physical activities, such as assisting residents, unloading vehicles, and decorating for parties.

Jones took FMLA leave to repair a torn rotator cuff from September 26 through December 18, 2014. On his last day of leave, Jones’s physician recommended that Jones not engage in physical activities until February 1, 2015, and that he continue physical therapy. Jones then requested light-duty work until he completed his physical therapy. However, his employer denied the request and instead approved 30 days of non-FMLA leave while Jones completed physical therapy.

During this 30-day period, Jones posted pictures on social media of trips to the beach, a theme park, and the mountains. When Jones was fully released by his doctor on January 19, 2015, he returned to work and was confronted by his supervisor with the pictures. The supervisor felt the pictures proved that Jones was able to return to work earlier than January 19. Soon after, Jones was fired.

The Lawsuit and Outcome

Jones sued alleging FMLA retaliation – claiming that he was terminated for taking FMLA leave. In retaliation cases, a “causal connection” between the employee’s use of FMLA and his or her termination (or other adverse employment action) is often shown through a close “temporal proximity” (i.e., a short span of time) between the leave and the adverse action. The closer in time the two events are to one another, the more likely the court is to find that an employee has a viable retaliation claim. As a rule of thumb, more than three months between the two events is generally considered too long to establish causation (baring other facts showing a connection).

In this case, the trial court granted summary judgment in favor of the employer on Jones’s retaliation claim because it measured the temporal proximity time span from the beginning of Jones’s FMLA leave – September 26 — until his termination the following January, which was four months, so too long to establish causation.

The Eleventh Circuit reversed, holding that temporal proximity “should be measured from the last day of an employee’s FMLA leave until the adverse employment action at issue occurs.” The Court reasoned that to hold otherwise would disadvantage employees who take FMLA leave for the full twelve weeks permitted by that law.

What This Means

When an employer needs to take adverse employment action against an employee who has recently taken FMLA-protected leave, the employer should proceed with caution. If the adverse action occurs within three months or less from the end of the employee’s FMLA leave, the employee will have a much easier time establishing an FMLA retaliation claim. In these situations, employers need to carefully evaluate these time periods and always ensure that their legitimate business reasons for their employment decisions are well-documented and accurate, as well as not retaliatory.

By  on June 13, 2017

Employers large and small regularly turn over employees. Employees quit to take care of their families, resign to take other jobs, or are fired.  Also, many employers, particularly ones whose employees are unionized, will lay off or suspend employees.  The reason for the permanent or temporary separation can be crucial in determining the employee’s eligibility for unemployment benefits.  While employers do not directly pay unemployment benefit claims, the number of successful claims affects the employer’s unemployment tax liability.

All 50 states, Washington D.C., Puerto Rico, and the U.S. Virgin Islands have some form of state-run unemployment benefits.  In every state, if an employee is terminated for cause it affects his or her ability to collect unemployment benefits.  In some states, it completely disqualifies the employee; in others it limits his or her benefit award.  Also in every state, if the employee voluntarily leaves (i.e., quits) without good cause (for no good reason), then he or she is barred from receiving benefits.

Each state, however defines differently what a disqualifying termination for cause is and what is good cause for quitting. Most states find that terminations resulting from drug or alcohol issues (like showing up intoxicated, or refusing a drug test) are for cause.  But Oregon, for example, will grant benefits to an employee who enters a drug or alcohol related rehab program within 10 days after such a discharge.  States like Virginia, North Carolina, and Michigan cite absenteeism as a cause for termination affecting an employee’s ability to collect benefits.  California and Pennsylvania find employees who are terminated due to a criminal conviction cannot receive benefits, while many others disqualify employees who commit crimes in the workplace (whether those crimes are prosecuted or not).  All states have a general disqualifier of termination for misconduct (but again each state defines misconduct differently).  Then there are unique disqualifiers, such as in Ohio and West Virginia where resigning to marry or attend to family or personal matters is the equivalent of voluntarily leaving without good cause.

While there are many common threads among the various states, each state’s disqualification standards are different. Employers need to know what reasons for separation hinder or preclude an employee’s claim for benefits.  It is important that employers consistently and accurately document all reasons for separation.  This includes temporary separations, like suspensions and labor disputes, because some states will pay benefits to temporarily unemployed workers.  Many of these states will not pay benefits to employees subject to a disciplinary suspension or out of work due to an on-going strike.   One word of caution that cannot be stressed enough, however, is this documentation of the stated reason for separation must be accurate.  If an employer creates a pretextual reason for termination, so as to hinder an employee’s ability to obtain unemployment benefits, it could expose itself or undermine its defense to claims of discrimination in that same termination.  An employer does not want to win the small victory of denying a former employee unemployment compensation only to find itself significantly hampered in responding to a discrimination lawsuit.

In summary, employers need to know their state’s reasons for disqualification, accurately document reasons for separation, and thoughtfully challenge unfounded unemployment benefit claims. If you need assistance is compiling a list of disqualifying reasons for your state or states, or if you want to discuss whether and how to fight a claim for unemployment (in light of other, perhaps bigger concerns), please do not hesitate to contact us.  We will be glad to assist you.