Of RIFs and FMLA Requests

Every HR professional knows that FMLA requests can get tricky, and that non-compliance can get costly. A recent court ruling shows there might be a price to pay even when an employee doesn’t explicitly make an FMLA request.

According to Crain v. Schlumberger Technology, Gregory Crain worked for 10 years as a regional sales manager for Schlumberger Technology Corp. and its predecessor company.

Terminated from his position as part of a reduction in force, Crain subsequently filed an FMLA interference claim, contending that the company violated his leave rights by letting him go just days after informing the organization that he needed to undergo surgery that would force him to take time off from work.

In October 2016, a jury agreed with Crain, awarding him $77,007; the amount of his severance. More recently, the United States District Court for the Eastern District of Louisiana affirmed that ruling, awarding Crain the original verdict award along with an additional, equal amount in liquidated damages. In other words, Schlumberger must now pay double the damages.

Why? The timing of Crain’s termination was certainly a factor, according to Tina Syring, a Minneapolis-based partner at Barnes & Thornburg and a member of the firm’s labor and employment law department.

As Syring points out, Crain’s name was included in the list of employees to be included in the RIF; a list that surfaced two days after his surgery.

“Prior to the formal notification, however, the plaintiff’s name was never included in any company RIF documents, even though the employer’s witnesses claimed that the decision to include him in the RIF was made weeks before such notice.”

In the end, she says, “the jury found the employer’s witnesses less credible than the company’s lack of documentation surrounding the decision to include the plaintiff in the reduction in force.”

Syring describes this decision as a “great reminder” that documentation matters when mapping out a reduction in force.

“According to the court, given the weight of the evidence (or lack thereof) and the temporal proximity of the termination, it was not an unreasonable decision by the jury to find in favor of the plaintiff.  Thus, when addressing RIFs, employers should take the time to carefully document which employees are being considered for the RIF and update this documentation throughout the decision-making process.”

Adding another wrinkle to this case is the fact that Crain didn’t specifically mention FMLA when he told the company that he would undergo surgery and would subsequently require time away from work. He did, however, inquire as to short-term disability leave, which ultimately compels the company to weigh the possibility of FMLA leave.

“As the Crain court noted, an employee is not required to use any sort of ‘magic words’ to provide notice of the need for FMLA leave,” says Syring.

“In this situation, the plaintiff made an inquiry to human resources about short-term disability. The Crain court found that to be sufficient notice to the employer to at least make an inquiry as to whether FMLA leave notice and adherence obligations were triggered,” she says, adding that testimony had also been given to confirm that the plaintiff told his former supervisor and two HR representatives that he was going to have surgery.

“Because the company could not demonstrate that it even considered the possible application of FMLA leave prior to [Crain’s] termination, the court found that the employer’s actions were neither in good faith or reasonable.  As a result, liquidated damages were awarded against the company.”