Author: Andrew Fernandez, Associate Member, University of Cincinnati Law Review
Modern life in American is often lived at a frantic pace and it is difficult for families to balance their work and family obligations. The Family & Medical Leave Act (FMLA) is designed to promote work-life balance in America.[1] It seeks to promote equal employment opportunities for men and women while balancing the interests of employers.[2] “The FMLA applies to all public agencies, pre-university schools, and companies with fifty or more employees.”[3] It requires covered employers to provide up to twelve weeks of unpaid job leave for a variety of reasons.[4] These reasons may include caring for an ill family member, the birth of a child, and individual health concerns.[5] Litigation surrounding this statute often questions whether an employer’s denial of leave to an employee violates the FMLA. In these cases, an important issue is when the statute of limitations begins running. The Seventh Circuit ruled that the statute of limitation begins to run when the violation of the FMLA occurs, not when the termination occurs.[6] The Sixth Circuit took the opposite approach, holding the statute of limitation begins at the employee’s termination.[7] While the policy of the Sixth Circuit decision is well intentioned, there is no support for the decision in the FMLA text. Congress should amend the statute to reflect the policy of Sixth Circuit in response to the circuit split.
Seventh Circuit Decision
The Seventh Circuit recently weighed in on the issue of when the FMLA statute of limitations starts to run. In Barrett, the plaintiff was employed by the Illinois Department of Corrections (“department”).[8] The employee was fired after twelve unauthorized absences in seven months.[9] The employee argued that three of the absences were protected under the FMLA because the absences were for family or medical care.[10] On each of the three occasions, the employee’s supervisor was notified of her absence but never received authorization to be absent.[11]On appeal, all three times the Employee Review Board rejected her request for leave.[12]
The court began by looking at the plain language of the statute, which states “an action may be brought under this section not later than 2 years after the date of the last event constituting the alleged violation for which the action is brought.”[13] The court reasoned, “when a[n] FMLA plaintiff alleges that his employer violated the Act by denying qualifying leave, the last event constituting the claim ordinarily will be the employer’s rejection of the employee’s request for leave.”[14] Using this language, the court held the statute of limitations began every time the Employee Review Board ruled against the plaintiff’s request for leave.[15] The plaintiff did not file her complaint until 2012, but her Employee Review Board hearings had occurred in 2004 and 2005. [16] Therefore, she was several years too late in bringing her claim against her employer.[17] The court rejected an argument from the plaintiff that her termination was the last event creating a FMLA violation. [18] The court reasoned the plaintiff’s argument that there can be more than last event under § 2617 (c) (1) was not supported by the statutory language.[19] Further, nothing in § 2617 (c) (1) supports an open-ended tolling rule holding the statute of limitations indefinitely.[20] The court acknowledged that forcing a plaintiff to file in litigation for every contested absence that may only result in minor discipline is not practical for many plaintiffs.[21] The court briefly mentioned the Secretary of Labor’s power to investigate FMLA complaints and suggested Congress may have considered these complaints be adjudicated by a federal agency as opposed to a federal court.[22]
Sixth Circuit Decision
In Butler, the employee worked for Owens-Brockway, a plastics products company, and was terminated for accumulating twelve points in a year and half under the company absentee policy.[23] Under this company policy, a worker who accumulated twelve points in a year could be terminated.[24] The employee was warned that she was placed on sixth month probation after her twelfth point accumulated.[25] That same day, she called in sick and was terminated.[26] The employee alleged that three of those absences were protected by the FMLA resulting in a violation of the statute.[27] The employer argued the statute of limitations should be based on the absences in the plaintiff’s employment record since termination occurs as a result of the absences accumulating. [28] The court ruled against the employer, and held that the “Plaintiff’s termination was the first material adverse action in this case, because it was the first action serious enough to warrant plaintiff’s resort to the legal system”.[29] If the alternative were true, then plaintiff would be forced to file suit after every contested absence in the record.[30] This interpretation would flood the legal system with litigation.[31]
Analysis
The Sixth Circuit opinion policy rationale is intuitive. Interpreting the statute of limitations to run after one employee absence will flood the courts with premature claims. However, the Seventh Circuit decision may actually decrease the amount of future claims. The plaintiff in the Seventh Circuit decision noted the impracticality of contesting every possible FMLA violation. [32] Potential plaintiffs are almost certainly short of money and time to devote to a lawsuit. Requiring plaintiffs to contest every one of their disputed absences in order to receive relief from the FMLA would discourage plaintiffs from seeking the protection of FMLA. In turn, this interpretation could embolden employers to violate the statute, confident that few people would be willing to litigate multiple challenges to contested absences. In contrast, a statute that allows employees to sue after their termination is a fair compromise because it is a significant event worth the effort of litigation. This puts the employee in the best position to sue for FMLA violations.
The Seventh Circuit position that FMLA violations were meant to be investigated by federal agencies as opposed to litigation is not a compelling position.[33] It is the most logical interpretation looking at the plain language of the statue.[34] Yet, it does not make sense that Congress would create a civil right of action not intending it to be used along the Secretary of Labor’s power to investigate violations. It seems unlikely Congress would create a toothless civil action if it wanted FMLA violations to be exclusively investigated and resolved by a federal agency. This interpretation promotes the application of the Sixth Circuit’s holding, however, just because the Sixth Circuits reasoning makes the most sense does not make it legally valid.
While the policy of the Sixth Circuit makes sense, unfortunately this ruling is not grounded in law. The Sixth Circuit does not use the text of the FMLA statute at all in making its determination. The court reached its decision because it reasoned an employee’s termination is the first action serious enough to warrant a lawsuit by the plaintiff. The Court decided this would lead to the federal courts being flooded with FMLA litigation because plaintiffs would be forced to bring lawsuits whenever a negative mark is assessed on an employee’s absence record. The court simply reaches an interpretation it feels makes the most sense for the statute. By not analyzing the statute, the court substitutes its own judgement in interpreting the statute instead of attempting to determine what the legislature intended. Undoubtedly, judges will have to make tough decisions when interpreting statutes. These decisions should be made by attempting to make some sort of statutory interpretation however. Otherwise, judges simply pontificate their views from the bench. For example, the Seventh Circuit notes in a footnote how unhelpful it found the Sixth Circuit decision because its reasoning was not based upon a reading of the statute. [35]
Congress should amend the FMLA statute in order to reflect the policy of the Sixth Circuit decision. “Except as provided in paragraph (2), an action may be brought under this section not later than 2 years after the date of the last event constituting the alleged violation for which the action is brought.” The statute’s language does not allow for more than one last event.[36] The statute requires a plaintiff to file suit after a particular event.[37] The statute does not give the plaintiff an option to sue after an absence in the record but then give them another opportunity to do so when the plaintiff is fired.[38] Nor does the statute support an interpretation of an indefinite statute of limitations.[39] Therefore, the Supreme Court’s best option would be to resolve the split in the direction of the Seventh Circuit. Congress has the power to amend the law to resolve this circuit split and improve the law for future plaintiffs. No longer will plaintiffs be penalized for their lack of resources or inability to devote time to a lawsuit regarding a disputed disciplinary record.
Conclusion
In conclusion, the Seventh Circuit decision reached the appropriate decision based on a proper understanding standing of the law and the statutory text. The Sixth Circuit decision, while inserting its own rationale as opposed to attempting to determine what the statute actually meant, has the appropriate policy considerations in place. Congress should amend the FMLA to allow plaintiffs to bring their FMLA claims after termination of employment as opposed to when the FMLA violation took place. This amendment will improve access to future plaintiffs while also ensuring employers are able to better judge the risk of litigation.
[1] See 29 USCA § 2601.
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Barrett v. Illinois Dept. of Corrections, 803 F.3d 893, 897 (7th Cir. 2015).
[7] Butler v. Owens-Brockway Plastics Products, 199 F.3d 314, (6th Cir. 1999).
[8] Barrett, 803 F.3d at 897.
[9] Id.
[10] Id.
[11] See Barrett, 803 F.3d at 896
[12] See id.
[13] 29 U.S.C § 2617 (c) (1).
[14] Id. at 897.
[15] Id.
[16] Id.
[17] Id.
[18] Barrett, 803 F.3d at 899.
[19] Id.
[20] Id.
[21] Id.
[22] Id.
[23] Butler, 199 F.3d at 315.
[24] Id.
[25] Id.
[26] Id. at 316.
[27] Butler, 199 F.3d at 316.
[28] Id. at 317.
[29] Id.
[30] Id.
[31] Id.
[32] Barrett, 803 F.3d at 899.
[33] Id.
[34] Barrett, 803 F.3d at 897.
[35] To be fair, the 7th Circuit Court also criticizes the 8th Circuit for a “thinly reasoned” opinion even though the 7th Circuit reached the same conclusion as the eighth. Barrett, 803 F.3d at 896 n.1.
[36] Barrett, 803 F.3d at 897.
[37] See id. at 899
[38] See id.
[39] See id. at 897.
