Second Circuit Lowers Bar for FMLA Retaliation Claims

Back on July 19, 2017, the United States Court of Appeals for the Second Circuit lowered the causation standard that an employee has to meet in order to bring a retaliation claim against an employer under the FMLA (Family and Medical Leave Act). The Second Circuit explained that FMLA retaliation claims should be analyzed through a “motivating factor” causation standard as opposed to a “but for” causation standard. With the usage of this standard, all an employee has to do in order to bring a viable claim for retaliation against an employer in the Second Circuit is to simply prove that their employer, in correlation with an adverse employment action, viewed an employee’s utilization of the FMLA, in a negative light. The Second Circuit now joins the Third Circuit in using this causation standard.

The Second Circuit expressed its intent to adopt this plaintiff-friendly causation standard going forward in the case, Woods v. START Treatment & Recovery Centers, Inc. This case involved plaintiff Cassandra Woods, who was employed as a substance abuse counselor for START, a nonprofit and one of the largest non-hospital health providers in New York state, from 2007 until she was fired in 2012. Starting in 2011, Woods found herself at the center of much criticism at work as she received multiple warnings regarding her poor performance and was placed on probation eventually because of it. Over the course of this time, Woods was dealing with numerous health problems including severe anemia. Woods alleges that she had requested time off under the FMLA to deal with these detrimental health conditions on multiple occasions over the course of her employment with START but was always denied this requested leave. Woods was eventually hospitalized for a week as a result of her condition in April of 2012; a period that START admitted was protected under the FMLA. Woods was terminated shortly after her return from the hospital due to what START claimed was because of her alleged incompetent work performance.

Going forward, it will be much less burdensome for employees within the Second Circuit, which consists of those in Connecticut, New York and Vermont, to succeed on FMLA retaliation claims. So long as a plaintiff is able to show that the usage of his or her FMLA rights was merely part of the reason their employer took an adverse employment action against them. Additionally, the adoption of this standard by the Second Circuit will also likely result in an uptick in the amount of FMLA retaliation cases that get past summary judgment and proceed to trial. Employers within the Second Circuit will now have to be more careful when terminating employees because although they may have legitimate business reasons for terminating an employee, they still may find themselves in legal trouble if it can be shown that they viewed an employee’s usage of FMLA provided leave as a motivating factor in making the decision to terminate them.

Should you have questions regarding FMLA and/or FMLA retaliation, call Gilbert Law Group today at (631) 630-0100.

Contributed by: Richard (RJ) Cherpak

Federal Court Affirms NLRB’s Change In Calculation For Job Search Expenses In Wrongful Termination Cases

The U.S. Court of Appeals for the District of Colombia Circuit just recently upheld the National Labor Relations Board’s (NLRB) decision for a change in its method of calculation for how unlawfully discharged employees should be compensated by their former employers. The NLRB will now allow employees who were wrongfully discharged to seek out compensation for the costs they incurred while searching for a new job. This change can have a significant impact on wrongful termination cases.

The decision leading to this change involved grocery store chain King Soopers, a division of Kroger Co. The American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), the Service Employees International Union, and an International Brotherhood of Electrical Workers local in Kansas all filed amicus briefs in favor of the proposed changes. The majority opinion was written by NLRB chairman Mark Gaston Peirce, NLRB member Kent Y. Hirozawa and NLRB member Lauren McFerran.

Previously, the NLRB had not awarded these job search costs to employees who claimed that they were unlawfully terminated as these expenses were only used to offset the interim earnings which limited the back pay to which an employee would be entitled to. As a result of this previously used policy, the compensation that a worker could be awarded was limited.

To illustrate the method historically used by the NLRB, say the plaintiff bringing suit has incurred $250 in expenses searching for a new job and has also lost $5,000 in gross earnings from his employer while failing to secure another job in the interim meaning that he has $0 in interim earnings. Under the traditional approach, the Board would award the plaintiff $5,000 in back pay which in reality would only result in the plaintiff recovering $4,750 once you subtract the $250 the plaintiff spent job searching. In this situation using the traditional approach, the plaintiff would not receive the $250 incurred in job search expenses because traditionally this amount was only awarded as an offset against interim earnings. Therefore, under the traditional approach, the only circumstance under which one could recover the expenses they incurred in job searching was if they were able to secure interim employment. Now, under this change in direction by the NLRB, the plaintiff will be able to be compensated for their job search expenses even if they are unable to secure interim employment.

Despite a strong showing of support for this change, NLRB member Phillip A. Miscimarra, who concurred in part and dissented in part, made some intriguing points in support of the traditional approach in his dissent. He felt that the traditional method of calculation was an effective method in most cases stating it “makes claimants whole in most cases, and the change adopted by my colleagues will result in greater than make-whole relief in other cases.” He continued to explain his worries regarding the change in approach stating “I do not discount the fact that parties and claimants experience substantial, often oppressive non-monetary consequences as the result of unfair labor practices, nonetheless, the [National Labor Relations Act] only permits the Board to award the relief that is remedial” not relief that compensates the plaintiff for everything they have lost. Additionally, he explained that the change in approach would open the door for “protracted board litigation” over job search expenses and that this newly adopted approach does not correlate with the method of calculation used by other statutes when calculating back pay.

Due to the impact of this decision, workers who are discharged and later ordered to be compensated with back pay will likely be awarded with greater amounts of money. However, it is still up in the air as to how much of an impact this change by the NLRB will truly have as David Rosenfeld, of Weinberg, Roger & Rosenfeld who also filed an amicus brief stated that job search expenses is a scarcely addressed topic in unfair labor practice cases. In an interview with Bloomberg BNA, Rosenfeld explained “people do find jobs, often they do find jobs that are the equivalent of what they lost, so there isn’t a lot of back pay.” In the majority opinion, the board wrote “Board proceedings have rarely involved litigation over search-for-work and interim employment expenses.”

If you have questions regarding a labor or employment issues, call Gilbert Law Group today at (631) 630-0100.

Contributed by: Richard (R.J.) Cherpak