Under the FMLA, once an employer knows that an employee is taking leave for an FMLA required reason, the employer must give the employee individualized notice that the leave will be counted against the employee’s FMLA entitlement. Several years ago, the Supreme Court invalidated a regulation that required employers to provide additional leave if they did not comply with the notice requirements in certain circumstances. Recent cases emphasize the part of that opinion the employers, including retailers, often ignore, that if the employee can show harm from the failure to provide notice, the failure to provide appropriate notice is violation of the FMLA.

In 2002, the Supreme Court decided Ragsdale v. Wolverine World Wide, Inc., which involved an employee who took leave for medical treatments without notice from the employer that such leave would count against her FMLA entitlement. When the employee’s condition persisted, thus requiring her to take additional leave, she was terminated. The employee sued the employer, alleging she was entitled to leave under the FMLA pursuant to the FMLA penalty regulation, which stipulated that leave not specifically designated by the employer as FMLA leave would not count against the employee’s FMLA entitlement. The Supreme Court, however, struck down the penalty regulation because it would relieve employees from their burden of proving they suffered actual harm as a result of the employer’s failure to designate leave under the FMLA.

In the recent case of Downey v. Strain, the Fifth Circuit Court of Appeals found Ragsdale to be instructive. Ultimately, Downey illustrates that the Ragsdale holding has teeth—an FMLA claim exists where an employer fails to give individualized notice and the employee can prove harm. Downey involved a female employee who took FMLA leave after proper notice from the employer to the employee. In that leave, the employee used 424 hours of her FMLA allowance, leaving 50+ hours of leave time for the remainder of the year. Within months of her return, the employee again requested FMLA leave for a surgery. The employer charged the employee with FMLA leave for this period without providing notice to the employee of that fact. During the second leave, the employee exhausted her FMLA entitlement. Upon returning to work, the employee was reassigned to a different position that did not have equivalent pay and benefits. The employee brought a lawsuit alleging that the employer interfered with her rights under the FMLA when he failed to provide her with individualized notice that her leave would be counted against her FMLA hours.

The court found that there was a violation of the FMLA because the employee proved she was harmed by the failure to provide notice.

Retailers must be especially careful concerning FMLA issues. Oftentimes, the store’s ultimate manager knows of the need and reason for leave but fails to properly notify Human Resources. This results in the retailer failing to provide notice as required. If the employee can show harm from the failure to provide notice that the leave counts against the employee’s annual FMLA entitlement, a violation of the FMLA occurs. Retailers must ensure that its managers receive proper training on the FMLA and understand the need to partner with Human Resources on all leave issues.