A recent FMLA case affirming a jury verdict in favor of an employee serves as a reminder to employers that if they are found to have violated the FMLA, in addition to having to pay the jury verdict, they will probably have to pay an additional amount equal to the jury verdict as liquidated damages.  Under the FMLA, an employer who violates the FMLA “shall be liable” for “an additional amount as liquidated damages” unless the employer “proves to the satisfaction of the court that the act or omission which violated [the FMLA] was in good faith and that the employer had reasonable grounds for believing that the act or omission was not a violation.” The case is Crain v. Schlumberger Technology Co. (E.D. Louisiana 2/23/17). 

Employee’s job elimination dated moved up after he advised employer of his need for surgery. The employee won on his FMLA interference claim even though he had been selected for termination as part of a reduction-in-force before anyone – including the employee – knew that he would require surgery.  The evidence showed that the employee was scheduled to be laid off in March as part of a reduction-in-force but when the employer learned in late January that he would need surgery, it accelerated the termination date to early February. The court affirmed the jury’s verdict that the employer had wrongfully interfered with the employee’s FMLA rights, noting that proof of unlawful intent is not required for an unlawful FMLA interference claim. 

Liquidated (doubling) Damages: No good faith. The employer argued that the court should not double the jury’s award of $77,000 as “liquidated damages.” However, the court disagreed, emphasizing that employers bear a “substantial burden” in proving good faith and overcoming the “presumption of entitlement to liquidated damages.”  Employers must prove both a subjective intent to comply with the FMLA and that they acted objectively reasonable in their application of the FMLA. Here, the court concluded that even though the employer had an FMLA policy in its handbook and even though it reviewed the list of employees selected for the reduction-in-force for compliance with the FMLA, the employer did not meet the good faith standard.  The court noted that while the employee had not actually requested FMLA leave, he had inquired about the availability of short term disability leave. The court reasoned that the employer’s failure to consider the possible application of the FMLA was neither reasonable nor in good faith.

Lessons for employers? Employers need to bear in mind that if they are held liable for an FMLA violation, there is a strong likelihood that the damage award could be doubled as “liquidated damages.” Further, if an employee succeeds on an FMLA claim, employers also have to pay reasonable attorney’s fees that the employee has incurred. While employees who need FMLA leave can be subject to a legitimate reduction-in-force, employers should be thoughtful about the timing of such decisions. Here, it would have been better for the employer to extend the termination date until after the impending surgery, rather than to accelerate the termination date to fire the employee beforehand.