Some of our seasoned readers will recall the Schoolhouse Rock!© classic “Conjunction Junction.” You can probably still whistle the tune and maybe even recall the gravelly voice of the linguist/train conductor helping us learn how to hook up words, phrases, and clauses like train cars in the rail yard:
Conjunction Junction, what’s your function? Hooking up words and phrases and clauses. Conjunction Junction, how’s that function? I got three favorite cars That get most of my job done. Conjunction Junction, what’s their function? I got “and”, “but”, and “or”, They’ll get you pretty far.
As it turns out, the conjunction “or” can actually get you pretty far in the legal reasoning world, as some confusing cases under the FMLA were clarified this month by the use of the Schoolhouse Rocks!© method.
But first, the background story. Salvatore Ziccarelli, a 27-year employee of a sheriff’s department in Illinois, had a long history of serious health conditions, and regular use of leave under the Family Medical Leave Act (FMLA). Over the course of his last decade of work, Salvatore used a lot of FMLA. In some years, he used as few as 10 hours of leave, but in others, he used more than 100 hours of leave. From July to September of Salvatore’s final year of employment, he used 304 hours of his allowable 480 hours of FMLA. So, it’s fair to assume that Salvatore knew how to use FMLA and the sheriff’s office knew that Salvatore was a regular user of leave.
Before applying for permanent disability benefits for Post-Traumatic Stress Disorder, Salvatore had to exhaust all his earned sick leave, including any available FMLA. According to Salvatore’s deposition, he called the FMLA manager and said he needed to use more FMLA leave so he could seek treatment for his condition. In response, Salvatore says he was told, “You’ve taken serious amounts of FMLA . . . don’t take any more FMLA. If you do so, you will be disciplined.” Afraid that he might lose his job if he tried to take more FMLA (although he did not claim he was actually threatened with termination), Salvatore retired from the sheriff’s office. And then Salvatore sued.
In the lawsuit, Salvatore complained that the sheriff’s office “interfered” with his rights under the FMLA. According to some federal court cases that have been decided over the years, in order to prove a case of “interference” with FMLA rights, a plaintiff must prove, among other things, that the employer actually “denied” FMLA benefits to which the employee was entitled, resulting in harm to the employee. Salvatore’s employer argued that even if Salvatore’s story were believed, there could be no liability for the sheriff’s department because Salvatore was never “denied” FMLA benefits of any kind—he decided to retire before he ever applied for additional leave and he was not disciplined before he retired. The court sided with Salvatore stating, “We hope this opinion will help clarify that an employer can violate the FMLA by discouraging an employee from exercising rights under the FMLA without actually denying an FMLA leave request.”
Here’s where growing up watching Conjunction Junction becomes important. The FMLA provides that an employer may not “interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under” the FMLA. 29 U.S.C. § 2615(a)(1) (emphasis added). The court admitted that previous cases “have used varying language that has led to some confusion.” Some of those previous cases said that an employee must show that “his employer denied him FMLA benefits” (emphasis added) in order for there to be potential liability. In this case, however, the court explained that the plain text of the FMLA makes clear that a violation does not require actual denial of FMLA benefits. Channeling its inner linguist/train conductor (but without the benefit of a helpful rhyming scheme), the court stated, “the use of the disjunctive ‘or’ in § 2615(a)(1) signals that interference or restraint without denial is sufficient to violate the statute, and that requiring denial would turn ‘interfere with, restrain, or’ into surplusage.” The court also pointed out that the Department of Labor regulations implementing the FMLA also support this interpretation of the conjunction “or”: “Interfering with the exercise of an employee’s rights would include, for example, not only refusing to authorize FMLA leave, but discouraging an employee from using such leave.” See 29 C.F.R. § 825.220(b). Thus, discouraging use of FMLA is as much a violation of law as actually denying leave.
Salvatore had more than one month of FMLA leave available when he inquired about taking more FMLA leave. That’s when Salvatore says he was interfered with by being told, “don’t take any more FMLA. If you do so, you will be disciplined.” Ultimately, the court made it abundantly clear that threatening to discipline an employee for seeking to use FMLA leave to which he is entitled clearly qualifies as interference with FMLA rights, whether or not the employee is ever actually denied a leave of absence.
Interestingly, the court also shared other examples of what could be considered prohibited “interference” with taking FMLA leave, including: the refusal to grant or accept proper requests for FMLA leave; overly burdensome FMLA approval processes and procedures; and, as in this case, informing an employee with FMLA leave available that missing additional time will have consequences.
In addition to being a fond reminder of the continuing significance of conjunctions in our HR lives, this case also serves as a reminder that employers must communicate clearly and, whenever possible, in writing with employees about their requests for FMLA leave. What we think are clear conversations are almost never reported the same way several years later by disgruntled employees.
Ziccarelli v. Dart, et al., No. 19-3435, (7th Cir. Jun. 1, 2022)