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22 No. 4 Disability Law Compliance Report NL 1

Disability Law Compliance Report

April 2014

Volume 22, Issue 4

Disability Law Compliance Report

By Gary S. Marx

NINTH CIRCUIT ADDRESSES WAIVER OF FMLA RIGHTS

In Escriba v. Foster Poultry Farms, Inc., 22 Wage & Hour Cas. 2d (BNA) 1, 2014 WL 715547 (9th Cir. 2014), the United States Court of Appeals for the Ninth Circuit held that an employee could waive her right to protected leave under the FMLA and thereafter be terminated under circumstances which otherwise would have been unlawful.

Key Facts

• Maria Escriba worked for Foster Poultry Farms for 18 years.
• On November 19, 2007, Escriba met with her immediate supervisor, Linda Mendoza, to request time off to care for her ailing father in Guatemala.
- ° Because Escriba only speaks Spanish, communications between her and Mendoza were garbled at best.
• According to Escriba, she thought she was requesting two weeks of paid vacation plus a period of unpaid leave under the FMLA.
• According to Mendoza, however, Escriba only asked to use her paid vacation and expressly denied that she was requesting FMLA leave.
• When Escriba did not return after the two weeks of paid vacation, she was terminated under Foster’s “three day no-show, no-call rule.” Under this policy, an employee is automatically terminated if he or she is absent for a period of three work days without notifying the company or without seeking a leave of absence.

Escriba brought suit under the FMLA and a jury found in favor of Foster Poultry. Escriba appealed to the Ninth Circuit.

Ninth Circuit’s Analysis

The Ninth Circuit started its analysis by noting that to make out a prima facie case of FMLA interference an employee must establish that: (1) he or she was eligible for the FMLA’s protections, (2) his or her employer was covered by the FMLA, (3) he or she was entitled to leave under the FMLA, (4) he or she provided sufficient notice of an intent to take leave, and (5) the employer denied him or her FMLA benefits to which he or she was entitled.

In this case, Foster Poultry argued that Escriba had expressly waived her right to take FMLA and therefore the company did not have “notice” within the meaning of the FMLA. In contrast, Escriba argued that since Foster Poultry was aware that Escriba’s circumstances were covered by the FMLA, it was required to designate her leave as FMLA-protected regardless of its impression that she expressly declined such a designation.

In analyzing this issue, the Ninth Circuit reasoned as follows:

• The FMLA does not expressly state whether an employee may defer the exercise of FMLA rights under the statute.
• However, the applicable regulations do place on the employer an obligation to determine if FMLA leave is being sought when the circumstances suggest that the Act may be applicable.
• An employer’s obligation to ascertain “whether FMLA leave is being sought” strongly suggests that there are circumstances in which an employee might seek time off but intend not to exercise his or her rights under the FMLA.
- ° Holding that simply referencing an FMLA-qualifying reason triggers FMLA protections would place employers like Foster Poultry in an untenable situation if the employee’s stated desire is not to take FMLA leave. The employer could find itself open to liability for forcing FMLA leave on the unwilling employee.
• Thus the Ninth Circuit concluded that an employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeking the leave would have invoked FMLA protection. See, for example, Ridings v. Riverside Medical Center, 537 F.3d 755, 13 Wage & Hour Cas. 2d (BNA) 1703, 156 Lab. Cas. (CCH) P 35462 (7th Cir. 2008) (“If an employee does not wish to take FMLA leave but continues to be absent from work, then the employee must have a reason for the absence that is acceptable under the employer’s policies, otherwise termination is justified.”)

NOTE:

As discussed below, except in the circumstances where an employer has a policy of not counting paid leave against the twelve weeks provided by the Act, there is no reason for an employee not to want the FMLA’s protections. And, in terms of the regulations’ requirement that an employer inquire as to whether FMLA leave is being sought, the purpose of that rule is to make sure that the employer and employee are both aware of whether the Act is applicable and not, as suggested by the Ninth Circuit, to give the employee an opportunity to waive the Act’s protections.

Escriba argued that affirmatively declining FMLA leave is tantamount to waiving it, and she pointed to a regulation providing that “[e]mployees cannot waive, nor may employers induce employees to waive, their rights under FMLA.” 29 C.F.R. § 825.220(d). The Ninth Circuit rejected Escriba’s reliance on this regulation, however, reasoning that it only applied where an employer is seeking to have the employee waive rights under the FMLA and not where the employee chooses on their own initiative not to exercise his or her rights under the FMLA.

Having concluded that there was no legal impediment to Escriba voluntarily waiving her rights under the FMLA, the court next found that, under the facts of this case, there was sufficient evidence to support the jury’s conclusion that Escriba did intentionally elect not seek FMLA coverage for her leave. Therefore, according to the court, Foster Poultry was warranted in terminating Escriba when she did not return to work after her two weeks of paid leave.

Flaw In Reasoning

Underlying the Ninth Circuit’s reasoning seems to be the belief that Escriba would have obtained some benefit from waiving her right to take FMLA leave and that Foster Poultry would be interfering with Escriba’s choice to “hold back her use of FMLA leave.” In support of this belief, the Ninth Circuit cited Wysong v. Dow Chemical Co., 503 F.3d 441, 12 Wage & Hour Cas. 2d (BNA) 1601, 154 Lab. Cas. (CCH) P 35346 (6th Cir. 2007), in which the Sixth Circuit noted that “[a]n involuntary-leave claim,” alleging that an “employer forces an employee to take FMLA leave,” is “really a type of interference claim.” However, Wysong was a totally different situation from that faced by Escriba. Wysong involved a case where an employer forced an employee to use FMLA leave when the Act did not apply and thereby reduced the amount of usable protected leave the employee needed in the future. In Escriba’s case, however, there was no dispute that the protections of the Act were available.

The Ninth Circuit presumably reasoned that Escriba was trying to “save” her 12 weeks of FMLA leave by taking her vacation leave first. But, such reasoning ignores the fact that Foster Poultry had the right to treat the vacation leave as part of Escriba’s FMLA entitlement even if Escriba had affirmatively stated that she did not want that to occur. As the Department of Labor has made clear, even if an employee does not want to use her paid leave for an event covered by the FMLA, an employer can require the employee to use it. While it may be that Foster Poultry did not intend to exercise that right (and was not intending to count Escriba’s paid vacation against her 12 week entitlement), there is nothing that suggests that was the case. Accordingly, absent some discussion between Escriba and Foster Poultry indicating that she was obtaining some benefit by not exercising her rights under the FMLA, the Ninth Circuit decision seems at odds with the purposes of the Act and there would have been no rational basis for Escriba to have waived the FMLA’s protections.

22 No. 4 Disability Law Compliance Report NL 1