Why it matters

An employer ran afoul of the Family and Medical Leave Act (FMLA) when it rescinded permission for an employee to work from home two days each week to care for her child. After her autistic son was expelled from day care, Miller Compressing Company allowed Tracy Wink to work from home two days per week to care for him. One Friday afternoon, however, Wink was told that, due to financial problems at the company, she had to work in the office full-time starting Monday or be fired. Unable to find day care, Wink was terminated and filed an FMLA retaliation lawsuit. A jury sided with the plaintiff and the employer appealed. The Seventh Circuit Court of Appeals affirmed the verdict, ruling that the plaintiff satisfied her evidentiary burden. The FMLA entitled Wink to take leave necessary “to take care of a very difficult (at times violent) sick child,” the panel wrote, and a reasonable jury could draw the inference that Wink’s superiors “were angry with her” for requesting to work from home.

Detailed discussion

An employee in the order processing department for Miller Compression Company, Tracy Wink, requested intermittent leave pursuant to the Family and Medical Leave Act (FMLA) to take her autistic two-year-old son to medical appointments and therapy in July 2011. The employer granted her request for a period of one year.

In February 2012, Wink’s son was expelled from day care (which he attended two days a week) because of his aggressive behavior, a product of his autism. Wink then requested FMLA leave to enable her to work from home two days each week, which would give her enough free time to take care of her son.

Human resources agreed to a hybrid arrangement that required Wink to inform the company of the number of hours she worked each day at home. The company then subtracted that time from the normal eight-hour workday to determine the hours of FMLA leave she used.

During the summer of 2012, however, Miller began experiencing serious financial problems. The company decided that none of its employees would be allowed to work at home during the week. On a Friday, the company told Wink that starting Monday she had to work five eight-hour days in the office each week or she would be terminated.

According to the evidence, Wink began to cry and told the HR officer that she would not be able to find child care for her son by Monday. The officer falsely told her that the FMLA covers leave from work only for doctors’ appointments and therapy. Unable to find child care by Monday morning, Wink was terminated.

She filed suit under the FMLA and a jury found in her favor. The employer appealed. After reviewing the evidence, the Seventh Circuit Court of Appeals affirmed.

“The Family and Medical Leave Act entitled Wink to take leave necessary to take care of a very difficult (at times violent) sick child,” the panel wrote. “Wink proved, and the jury determined, that the company had retaliated against her for asserting her FMLA right to take leave necessary to enable her to take care of her sick child for several hours two days a week. As she was a valued and experienced employee who had worked for the company at home two days a week since February without the company’s complaining, the company had no compelling reason to fire her.”

Perhaps, the Seventh Circuit suggested, Miller could have lowered her wage because of its financial troubles. But the employer did not argue that point.

“The best inference, or at least an inference that a reasonable jury could draw, was that Wink’s superiors were angry with her for requesting to be allowed to stay home (albeit working part of the day) two days a week, though she’d been doing that since February to the satisfaction of her employer,” the court said. “Hence the phony line that FMLA can’t be used to authorize leave to take care of a very sick child even when obtaining day care for the child is difficult or even impossible because of the child’s particular ailment—autism that in this case manifested itself at times in violent behavior.”

The FMLA is explicit that an eligible employee (which Wink was conceded to have been) is entitled to take up to 12 work weeks of unpaid leave per year in order to care for a family member with a serious health condition, including a child with such a condition, the court noted.

Wink’s award for claims of breach of contract and violation of Wisconsin state law were similarly affirmed by the Seventh Circuit, which also held that her award of attorneys’ fees—discounted by the district court judge by 20 percent—be paid in full.

To read the opinion in Wink v. Miller Compression Company, click here.