We noted last year that 20 years after the original passage of the Family and Medical Leave Act (“FMLA”), the Department of Labor issued a survey report lauding the effectiveness of the law and the positive impact it has had on the American workforce. One of the most interesting points from that survey report was the assertion that most employers purportedly reported experiencing “little to no negative impact from the FMLA,” which caused at least this author to wonder what employers the DOL surveyed, particularly when the perception among many is that the FMLA has become a source of regular employee abuse.
The statistics regarding FMLA litigation give more reasons to raise an eyebrow or two over the contention that the FMLA has had little to no negative impact among employers. Recent information released by the Administrative Office of the United States Courts seems to confirm that the FMLA, though well-intentioned and an important right that many employees legitimately exercise, has also become a major area of concern for employers.
According to the Administrative Office information, the number of FMLA lawsuits filed in the federal court system more than tripled from 2012 to 2013 (the same year in which the DOL claimed the law created “little to no negative impact” among employers…). Additionally, the number of FMLA suits filed since October 1, 2013 through the middle of August 2014 already show nearly 100 more FMLA suits than those filed in the previous full calendar year, suggesting that the trend of increasing FMLA-based litigation is not likely to change in the foreseeable future. While most of these lawsuits claim both interference with employee FMLA rights and retaliation against employees who have taken FMLA leave, increasingly they also contain claims alleging employer failures to follow the technical requirements of the law, such as a failure to properly complete necessary paperwork or properly designate a leave as FMLA qualifying.
What is driving this incredible growth in FMLA litigation? We can speculate that increasing employee awareness of the FMLA and willingness to use it could be generating the explosion in FMLA litigation. As more employees seem to be taking FMLA leave than ever before, it becomes a simple numbers game potentially explaining the increase in FMLA litigation. Whatever the reason however, there is no avoiding the conclusion that FMLA issues should merit considerable attention for employers with covered worksites, and to the extent they do not already have in place clear procedures designed to promote FMLA compliance, employers would be wise to adopt such procedures as soon as possible.
So how can employers work to stay in front of the challenges the FMLA presents? Some of the best advice we can suggest is that knowledge is power. Employees who have responsibility for FMLA administration should have a clear understanding of what the FMLA requires and the obligations it imposes on both employers and employees (such as providing proper medical information to establish the existence of a serious health condition). Depending on its size and internal organization, an employer might also be wise to consider training an internal FMLA “expert” and centralizing FMLA administration with that expert. These are only a few thoughts and suggestions – FMLA administration and compliance are broad topics worthy of hours of training. And now might be just the time for that kind of training, as the explosion in FMLA litigation gives employers a strong reason to re-examine current FMLA processes and work to ensure they are promoting sound FMLA administration and compliance.