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What Notice Does My Employer Have To Give Me Regarding My FMLA Rights?

by | May 25, 2023 | Employment Law, Family Medical Leave Claims, Federal Law Update |

Today, we look at the recent United States Court of Appeals for the Eleventh Circuit case of Graves v. Brandstar, Inc., No. 21-13469, 2023 WL 3316741 (11th Cir. May 9, 2023). Jessica Graves was an employee of the Florida-based Brandstar Studios, which provided video-production and content-creation. As Graves tells it, her supervisors knew starting early in her employment that her father, who lived in Pennsylvania, was terminally ill, and that Graves, as her father’s primary caregiver, coordinated medical services and visited him frequently. On Wednesday, May 2, 2018, Graves learned that her father had been rushed into emergency brain surgery to remove a cancerous tumor. She sent the following email to her supervisor:

Subject: Family Emergency

Hi guys, I’m planning to fly out to see my dad in PA tomorrow morning. My dad is in ICU. I will not be available for calls/edits. Thank you in advance for making any adjustments to my schedule.

Her employer, Brandstar, did not provide any FMLA information in response. Graves was off of work to care for her father until May 6.

Prior to Graves retuning to work, she sent Brandstar’s CEO an email on May 6 that reads:

Subject: My Dad

Hi Mark, I just got back from PA where my dad was having emergency brain surgery for a tumor. The aggressive throat cancer that he just finally recovered from last year has metastasized and formed two tumors in his brain. This recent surgery was only able to remove one, the other will need to be treated with radiation and intense chemo and soon.

My dad is a Vietnam Vet who was affected by Agent Orange: He spent his entire career working in the probation and parole system, since retiring he has lived alone in Western PA. He’s the kindest, strongest and most stubborn man I’ve ever known and he’s my best friend.

Fortunately, I was able to convince him to let me find the best oncologists and radiologists in South Florida for this next and hopefully final round of treatment, but I will need to move him down here asap. Since the last treatment resulted in pneumonia which required a portion of his lung to be removed and feeding tube chest port to be put in. He nearly died twice. The reason I’m telling you this is because I’m hoping you can help.

I have a 2-car garage that I need to convert into a studio apartment and I know that between Ryan/Russ/Edwin/Vince they could knock this out in a few days.

I am hoping you’ll see the benefit in allowing them a few days to do this within the next couple weeks since we can also turn this into a local Military Makeover UFP. There are a few companies I can reach out to for materials to help, but I am prepared to pay for everything myself, including labor. All I need from you is permission to ‘borrow’ the guys.

I’m around if you want to give me a call otherwise we can discuss Monday. I’m going to be driving him and his beloved dog down to FL once he’s released from rehab to begin treatments.

Once again, the employer did not provide Grave with any FMLA notifications in response to this email.

The question before the United States Court of Appeals for the Eleventh Circuit was whether either of these emails sufficiently put the employer on notice of an FMLA request and triggered their obligation to provide FMLA notifications.

What is the FMLA?

The Family and Medical Leave Act (“FMLA”) is a federal law that provides eligible employees with unpaid job protected leave from work for certain personal and family medical reasons, as well as to care for a newly born or adopted child. During FMLA leave, the employer is required to maintain the employee’s health insurance coverage and restore the employee to his/her/their previous job or an equivalent position upon their return to work. Employers are prohibited from retaliating against employees for taking FMLA leave or interfering with an employee’s FMLA rights.

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What are an employer’s notification obligations under the FMLA?

Under the FMLA and its implementing regulations, there are several kinds of notice that an employer must provide—at different junctures and in different circumstances. See 29 C.F.R. § 825.300. Here are the different types of notices that employers must provide:

  • General Notice: Employers are required to post a general notice about the FMLA in a conspicuous place where it can be easily seen by employees and applicants. The notice must explain the FMLA’s provisions and how to file a complaint if an employer violates the law.
  • Eligibility Notice: FMLA regulations require an employer to provide eligibility and rights-and-responsibilities notice to an employee within five business days of when either (1) “an employee requests leave” or (2) “the employer acquires knowledge that an employee’s leave may be for an FMLA-qualifying reason.” 29 C.F.R. § 825.300(b)(1). This notice informs the employee whether they are eligible for FMLA leave and includes information about the amount of leave available to them.
  • Rights and Responsibilities Notice: When an employee is determined to be eligible for FMLA leave, the employer must “detail[ ] the specific … obligations of the employee and explain[ ] any consequences of a failure to meet these obligations,” such as providing periodic updates on their status, and their right to return to the same or an equivalent position upon return. 29 C.F.R. § 825.300(c)(1).
  • Designation Notice: If the employer determines that an employee’s leave is covered by the FMLA, they must provide a designation notice to the employee. This notice informs the employee that their leave is being counted against their FMLA entitlement and includes the dates of the leave period.

Employers can provide these notices in various formats, including in writing, by email, or verbally.

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How do you prove an FMLA interference claim based on lack of notice?

To prove an FMLA interference claim based on lack of notice, an employee must establish that they provided adequate notice of their need for FMLA leave and that the employer failed to provide the required notice of the employee’s FMLA rights.

Here are the steps an employee can follow to prove an FMLA interference claim based on lack of notice:

  1. Provide notice of the need for FMLA leave: The employee must provide the employer with sufficient notice of the need for FMLA leave. This notice can be provided verbally or in writing and should include the reason for the leave and the anticipated start and end dates.
  2. Ensure eligibility: The employee must also ensure they are eligible for FMLA leave. To be eligible, the employee must have worked for the employer for at least 12 months, worked at least 1,250 hours during the previous 12-month period, and work at a location with at least 50 employees within a 75-mile radius.
  3. Determine if notice was required: If the employer was not aware of the employee’s need for FMLA leave, the employee must determine whether the employer was required to provide notice of the employee’s FMLA rights.
  4. Prove lack of notice: If notice was required and the employer failed to provide it, the employee can prove lack of notice by providing evidence that the employer did not post the required FMLA notice, did not provide the employee with the required notice of their FMLA rights, or did not provide the employee with a proper FMLA eligibility notice.
  5. Establish harm: The employee must also establish that the lack of notice harmed their ability to take FMLA leave. This can be shown by providing evidence that the employee was denied FMLA leave or that the employee was discouraged from taking FMLA leave due to the lack of notice.

Overall, to prove an FMLA interference claim based on lack of notice, an employee must show that they provided adequate notice of their need for FMLA leave, were eligible for FMLA leave, and the employer failed to provide the required notice of the employee’s FMLA rights, resulting in harm to the employee.

In Graves, the Eleventh Circuit Court of Appeals held: “Importantly for present purposes, it doesn’t take much to trigger an employer’s obligation. Id. at *3.

The Court went on to hold that Graves’ first email triggered the notice requirement:

In the May 2 email, Graves told Brandstar executives that she intended to fly to Pennsylvania for her father’s emergency brain surgery the next day and would “not be available for calls/edits” while she was with him. We agree with Graves that her email was sufficient to trigger Brandstar’s obligation to provide her eligibility and rights-and-responsibilities notice under the FMLA because Brandstar “acquire[d] knowledge that [her] leave may be for an FMLA-qualifying reason.” Id. § 825.300(b)(1). It is undisputed that Brandstar failed to provide Graves the required notice following the May 2 email.

Id. at *3. Unfortunately for Graves, the Eleventh Circuit held that while there was a breach it caused not damages because she was able to take the time off. Thus, Graves lost her claim arising out of this violation.

Next, the Eleventh Circuit Court of Appeals held that Graves’ second email, the one sent on May 6, did not trigger FLMA notice requirements:

Graves separately contends that her May 6 email—in which she asked for ongoing flexibility to prepare her home for her father’s move to Florida—triggered Brandstar’s obligation to provide her eligibility and right-and-responsibilities notice, which it failed to do. We disagree for a fundamental reason: Graves didn’t request leave either in her May 6 email or in her subsequent communications with Brandstar.

The Family and Medical Leave Act requires, at the very least, that an employee actually seek leave—of some sort—to trigger an employer’s obligation to give eligibility and rights-and-responsibilities notice. As already explained, the operative notice regulation requires either that an employee specifically “request[ ] FMLA leave” or that the employer “acquire[ ] knowledge that an employee’s leave may be for an FMLA-qualifying reason.” 29 C.F.R. § 825.300(b)(1) (emphasis added). That regulation, as we have said, sets a low bar, but in either triggering instance, the employee must ask for time off—i.e., leave—in order to prompt the employer’s notice obligations. … An examination of the May 6 email reveals that Graves didn’t ask for leave—of any sort—to care for her ailing father.

Id. at *4.

In my view, an argument was missed. Had the employer properly provided notice after the first email, Graves would have been informed of her FMLA rights and obligations – such as specifically mentioning leave in any further requests. Thus, the harm that flowed from the employers first breach was not the denial of leave but keeping Graves in the dark about her future obligations under the FMLA, which in turn did cause harm.

Now, this argument might not have worked, but it certainly would have increased the risk factor for the employer, which in turn may have increased settlement offers to a point where the case could have been settled instead of losing in the District Court and again on appeal.

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Do I need an attorney to help with my FMLA claims?

Yes. As you can see above, the FMLA is an incredibly complex federal law with lots of pitfalls and traps, the smallest of which can doom your claim. An experienced employee’s rights lawyer will help you navigate your FMLA claims and issues. Thus, it would be best to call the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?). Call our top employment lawyers in Ohio, Michigan, North Carolina, and Kentucky to get help now. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.

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