I came across an interesting FMLA case this past week, and the facts are simple enough that it kept my attention. [In the age of Twitter and Facebook, anything beyond a 30-second sound byte and you might as well give me a blanket for a long-winter's nap. Right?] However, the lesson from the case should be enough to grab the immediate attention of any in-house counsel or HR professional.
Patrick Hurley was president of a security company, and he also suffered from depression and anxiety. Despite treatment over several years, his condition had not improved. Based on his doctor's advice, Hurley asked his CEO for a leave of absence. At first, Hurley simply told the CEO that he had been advised by his medical health professional to take some vacation. In a follow-up conversation, however, Hurley bluntly told his CEO that he had been diagnosed with depression and that he needed time off to deal with it.
The CEO's response? "Hurley...we've 'had a great run together,' but it is 'time to part ways.'" Immediately thereafter, Hurley was terminated. The FMLA suit quickly followed, and Hurley prevailed at a jury trial on his FMLA interference and retaliation claims. Hurley v. Kent of Naples
In their blog, Marti Cardi and Megan Holstein of Reed Group highlight the Hurley case, and they do a great job of assessing the cost to an employer where the manager (like here) does not recognize (or refuses to recognize) a leave request covered by the Family and Medical Leave Act.
Their estimate of the damages Hurley's employer will have to pay out: a cool $1.26 million. This amount includes back pay, front pay, liquidated damages (a form of "punitive damages"), attorneys fees and interest.
What the Lesson Here?
Employers, let me be blunt: we need to do a much better job of training our managers because they simply are not identifying when a request for a leave of absence might be protected by the FMLA. Court cases like the one above prove that we need to do better. And as Reed Group aptly points out above, employers are hemorrhaging money as a result.
Interestingly, over the past week alone, I've worked with a Fortune 500 company and a large local government employer that face the same dilemma: their managers on the front lines are not recognizing when an employee's absence could be covered by the FMLA, and their managers are not communicating this information to those responsible for leave management. Their ignorance, in turn, is creating tremendous risk for the employer.
It is critical that your managers identify an employee's need for FMLA leave because, at a minimum: 1) they are responsible for communicating to Human Resources or a leave administrator that the employee may need FMLA leave; and 2) they are your eyes and ears at an early stage in the game where FMLA abuse might be an issue.
Do yourself a huge favor as you prepare your budgets this year: include a line item for manager FMLA/ADA training. The training should: 1) educate your managers on the FMLA and what the law protects; 2) include indicators of a serious health condition; 3) arm your managers with (perfectly legal) questions they can ask an employee who is requesting leave that may be covered by FMLA; 4) provide the skills and leave management techniques necessary to properly manage an employee with a medical condition.
If you spend the $2K now to train your managers, you'll likely save $1.2 million and also significantly reduce the chance I'll be writing about the FMLA judgment against you on my blog.
Not that anyone reads my malarkey anyway...