In Escriba v. Foster Poultry Farms, Inc., 2014 WL 715547 (9th Cir., Feb. 25, 2014), the Ninth Circuit affirmed the district court’s judgment, after a jury trial, in favor of the defendant in an action under the Family and Medical Leave Act (“FMLA”). The Ninth Circuit held, inter alia, that: 1) the district court did not err in denying plaintiff’s motion for summary judgment because an employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeking leave would have invoked FMLA protection; and 2) there was substantial evidence that the plaintiff elected not to take FMLA leave.
In Escriba, Plaintiff worked for Foster Poultry Farms, Inc. (“Foster Farms”) for 18 years. She requested a two-week leave to travel to Guatemala to care for her father. She decided to extend her stay, but did not speak with anyone at Foster Farms to let them know. Upon return, she was terminated for failing to comply with the company’s “three day no-show, no-call” rule. Escriba filed suit alleging that Foster Farms was required to designate her leave as FMLA-protected and to provide her with a notice of her rights under the FMLA, regardless of whether she expressly declined such a designation.
Foster Farms offered evidence that: 1) Escriba requested two weeks of paid “vacation” from her supervisor and refused FMLA leave; 2) her supervisor confirmed with an interpreter that her leave request was for “vacation” and not FMLA; 3) her supervisors informed her that if she needed further leave, she would need to contact Human Resources, as her supervisors did not have authority to grant FMLA leave; 4) Escriba never followed up to request any additional time off; and 5) Foster Farms had an employee-leave policy that requires an employee who requests FMLA-protected leave to first exhaust paid vacation time, which would run concurrently with the FMLA leave.
Relying on Department of Labor regulations, the court found that an employee may defer exercise of FMLA rights, but noted that the employer has an obligation to further inquire to ascertain the details of the leave and confirm whether it is or is not FMLA. The court reasoned that if “simply referencing an FMLA-qualifying reason triggers the Act’s protections [it] would put employers in an untenable situation if the employee’s stated desire was not to take FMLA leave, because the employer could be liable for forcing FMLA leave on the unwilling employee.” As an example, the court stated that “under the facts of this case, if Escriba purposefully deferred asking for FMLA leave until after the expiration of her paid leave, she would have had two more weeks of protected leave than if she had initially requested family leave. A jury, hearing about Foster Farm’s policies, could have easily concluded that Escriba sought to preserve future FMLA time.”
Insights for Employers
When an employee’s request for FMLA-qualifying leave is ambiguous, it is the employer’s burden to inquire about the leave to determine the nature of the leave, the timing and duration of leave. At that point, if the employee fails to respond to reasonable inquiries, the employee may lose the right to FMLA protection.
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