The National Institute for Workers’ Rights, National Employment Lawyers Association (NELA), and A Better Balance recently filed an amicus brief with the Fourth Circuit in the matter of Shipton v. BGE (No. 23-1360) urging the court to reject the “honest belief” defense in Family Medical Leave Act (FMLA) interference cases. Law360 reported on the filing, quoting NELA Program Director Ashley Westby: “All workers have the right to be treated with dignity and respect in emergency situations, and courts should not be tipping the scales in favor of employers by adding additional barriers to the ability of workers to utilize their legally protected leave.”
The plaintiff in the case, Michael Shipton, was ostensibly terminated for misuse of FMLA leave, but his employer did not engage with any of the steps prescribed in the FMLA for dealing with concerns about fraud. Now the company has argued that they should not be liable for their actions because they had an “honest belief” that he had misused his FMLA leave when they terminated him. This claim cuts against the plain language of the FMLA, which only authorizes consideration of employer motivation for the purposes of determining liquidated damages. Although some courts have endorsed the use of the “honest belief” defense in FMLA retaliation cases, the Fourth Circuit has never sanctioned the defense, and should decline to do so now.
The United States is unique among advanced economies in its failure to mandate any kind of guaranteed paid medical or family leave for workers. Instead, workers in the U.S.—if they have worked full time for a year at a workplace with over 50 employees—are entitled to take up to twelve unpaid weeks of leave a year under the FMLA without fear of losing their job. Just over half of U.S. workers qualify for FMLA leave, but the law’s benefits are not evenly distributed. Low-wage workers are less likely to be eligible for leave, more likely to fear job loss if they take leave, and more likely to be fired for taking leave than their high-income counterparts. Two-thirds of low-wage, FMLA-eligible workers who forgo necessary medical leave cite concerns about job loss as a motivating factor in the decision.
Congress enacted the FMLA in 1993 with the goal “to balance the demands of the workplace with the needs of families, to promote the stability and economic security of families…to promote national interests in preserving family integrity,” and “to entitle employees to take reasonable leave for medical reasons, for the birth or adoption of a child, and for the care of a child, spouse, or parent who has a serious health condition.” In order to advance its policy goals in a “manner that accommodates the legitimate interests of employers,” the legislature created both prescriptive and proscriptive protections for eligible employees. On the one hand, Congress authorized individuals to bring claims for “interference” with any prescriptive protections, such as the FMLA’s right to take up to 12 weeks of leave, whereas on the other, it authorized discrimination or retaliation claims to vindicate an employee’s proscriptive rights. Congress expressly authorized only a single circumstance where an employer’s honest belief that an employee misused the rights afforded them under the FMLA is relevant: for the determination of liquidated damages. The defense is especially inappropriate in prescriptive claims, where employer intent is not an element of proof.
Allowing the defense in either prescriptive or proscriptive claims is contrary to the plain language and statutory intent of the FMLA and goes against the Fourth Circuit’s well-reasoned approach in Sharif v. United Airlines, 841 F.3d 199, 208 fn. 2 (4th Cir. 2016), when the Court last declined to address the honest belief defense in FMLA discrimination or retaliation cases. The Fourth Circuit should resist the invitation from employers to redesign Congress’ intended regulatory regime and make clear that the honest belief defense is inapplicable to both FMLA interference and discrimination claims.
The Institute would like to thank Erika Jacobsen White of Joseph, Greenwald & Laake, P.A. and NELA President Carla Brown of Charlson Bredehoft Cohen Brown & Nadelhaft PC for their work on drafting and filing the brief.
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