A recent California Court of Appeal decision draws a bright line on the limits of family medical leave protection. The case is Rogers v. County of Los Angeles (filed August 16, 2011) 2011 DJDAR 12429.
The Family Medical Leave Act [“FMLA”] and the California equivalent of the FMLA, the California Family Rights Act [“CFRA”] provide an employee two prongs of attack if an employer violates the leave law: “interference” with the FMLA/CFRA and “retaliation” because an employee exercises her right to leave. The protection of the FMLA/CFRA is essentially this: the employee who uses the leave and is released by her doctor to return to work within the 12 weeks, and who can perform all the essential functions of her job (with accommodation, if needed), is entitled to be return to the same or comparable position, on essentially the same terms and conditions as those existing before her leave rights were exercised.
Rogers was a 36 year employee of the County of LA. She was in charge of a “special services” that supported the Board of Supervisors administratively. She became unable to work due to work related stress, and exercised her FMLA/CFRA rights to leave. She was out of work for 19 weeks [7 weeks longer than the FMLA/CFRA protection of 12 weeks.] Within the first few weeks of her leave, a new executive officer was appointed who had responsibility for a major “streamlining” of the “executive office.” A major realignment of positions was completed during Rogers’ leave, and she was assigned a different position without loss of pay or benefits. However, she no longer managed employees, but performed high level human resources tasks. She was very upset upon returning to work, and she resigned her job, and retired, on the day she was to be transferred into her new position. She claimed that the transfer into a non-comparable position “interfered” with her CFRA rights and was also“retaliation” against her for using those rights.
The jury found for Rogers, awarding total damages of $356,000.00. The Court of Appeal took a very unusual approach to this case. It overturned the verdict, finding that there was “no substantial evidence” to support the verdict as a “matter of law.” The reasoning of the court was quite simple: The FMLA/CFRA provides 12 weeks protection, and only 12 weeks. If the employee does not return to work within those 12 weeks, the rights disappear.
This use of terminology “interference” and “retaliation” can be confusing. I have not seen a case which clarifies the difference. It may be that the difference is in the degree of superficial compliance with the leave statute. If the employer technically complies with the statutory leave requirements, and returns the employee to the same position within the 12 weeks of accorded leave, but then fires, demotes, or cuts the pay of the employee some time after she returns to work, that sounds like retaliation for use of leave.
“Interference” with the use of leave impresses me as occurring during the time when the leave is being exercised, as when a defender is charged with “pass interference” during a play in progress as the receiver is about to catch the football. Indeed, in the Rogers decision, the employee argued that there was interference because the realignment of her position was a decision reached during the time she was using her medical leave rights. Of course, the Court did not accept this argument as a “matter of law” because she received the full 12 week leave, and did not return to work for an additional 7 weeks.
A clearer example of “interference” might be when the employer fails to maintain the employee’s insurance benefits during the leave. Another example is when the employer demands medical information in excess of the basic information outlined by the statutes, or when the employee insists that the employee perform services while disabled. A more patent “interference” would occur if the employer harasses or hypercriticizes the employee with communications to the employee while the employee is on leave.
The Rogers Court of Appeal did not state that the use of 12 weeks leave, with protection, extended by 7 weeks without statutory protection, could not as a matter of law, result in a cause of action for “retaliation” because the employee used the 12 weeks of leave. That result would be strange. For example, the County of Los Angeles had a short term leave policy that operated to allow leave beyond the 12 weeks of FMLA/CFRA protection, and Rogers used it. Her managers did not have the option of firing her because she was disabled beyond the FMLA/CFRA leave. One can easily imagine that a manager would be vindictive toward Rogers because she had been out of work for so long, and retaliated against her because she used her FMLA/CFRA 12 weeks of leave, as well as her extended County of LA short term disability leave.
The timing of the retaliation will very often be only after the employee has returned to work, and it will sometimes be the case that a company or government agency has a short term disability leave policy that allows the employee to return to work even after the 12 weeks of FMLA/CFRA leave. The Rogers Court analyzed the evidence for retaliation, impliedly agreeing that the evidence was relevant even to a situation when the employer allows the employee to return to work after the 12 weeks has expired. In Rogers, the Court found the evidence for retaliation lacking, while the employer’s evidence for elimination of Rogers' position was abundant.
In summary, the Rogers decision holds that generally, FMLA/CFRA protections end for all purposes if the employee is released to return to work only after 12 weeks, but a more careful reading of the case indicates that a retaliation claim can still be made in situations where the employer allows the employee to return to work after the 12 weeks has expired. That may not seem likely, but it actually is very possible. A company may have a short term disability policy that allows return to work beyond 12 weeks, and a particular manager in the company may nonetheless have a vendetta against the employee because she used the 12 weeks of leave. That would be illegal retaliation under the Act.
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