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California appeals court rules for Foster Farms in FMLA case

A California appeals court has upheld a decision by a jury in favor of Foster Poultry Farms Inc. regarding its termination of an employee. The plaintiff accused the poultry company of violating her rights under the federal Family and Medical Leave Act as well as the California Family Rights Act.

The plaintiff, who was represented by a legal aid society in Northern California, argued that she was protected from termination under the FMLA even though she didn't request FMLA leave, and that workers cannot waive their rights under the FMLA. However, the U.S. Court of Appeals for the Ninth Circuit ruled that businesses can allow employees to decline to take FMLA leave, even when they would qualify for it. They also determined that the plaintiff was asked more than once if she wanted to take unpaid FMLA leave, and she declined.

Because the employee did not request FMLA leave, according to the court, she was not protected against termination. It ruled that "an employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeking the leave would have invoked FMLA protection." She was apparently no stranger to this type of leave. The court pointed out the she had taken it some 15 times in the past.

The plaintiff, who had worked at the processing plant in Turlock for nearly two decades, was terminated in 2007 when she did not return to work after a trip to Guatemala where she was reportedly taking care of her sick father. She had elected to take two weeks of her vacation time for the visit. Because she did not contact the company to explain her continued absence, she violated the company's "three day no-show, no-call rule."

One aspect of the ruling was good news for the plaintiff. The court rejected Foster Farms' request that the plaintiff pay their legal costs of $14,000. The court noted the "significant financial disparity" between the plaintiff and the poultry supplier. It also noted that to force the plaintiff to pay the defendants' litigation fees would have a "chilling effect on future FMLA cases."

Businesses would be wise to consult with their legal team to help ensure that they are taking steps to protect themselves from such litigation when an employee declines to use FMLA leave for a medical or family situation, while still protecting their employees' rights under federal and state law.

Source: Bloomberg BNA, "Ninth Circuit Upholds Verdict Against Worker Who Expressly Declined Use of FMLA Leave" Jay-Anne B. Casuga, Feb. 27, 2014

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