Labor & Employment Law

Ignorance of employer's own paid leave policies excuses claim for liquidated damages

By statute, liquidated (e.g., double damages) are assumed for a violation of the FMLA. To avoid liquidate damages an employer must demonstrate both that the action or omission was in good faith and that the employer had objectively reasonable grounds to believe that the act or omission did not violate the FMLA. 29 U.S. C. 2617(a0(10(A)(iii).

In Roman v. Potter, No. 09-1600 (1st Cir. May 5, 2010), the employee appealed the decision of the lower court awarding summary judgment to the Postal Service on her FMLA interference and retaliation claims. Roman alleged that the four-week delay in the approval of her request for paid leave to run concurrent with her approved FMLA leave violated the FMLA's anti-retaliation provisions for exercising protected rights.

The Postal Service argued that the delay was the result of the ignorance of a local official regarding a recent change in Postal paid leave policy, not illegal retaliation. Under the former policy, the employee had to sign a leave request form in order to perfect their request for paid leave. Under the new, automated policy, the employee did not have to sign the form. The official did not approve paid leave because Roman had not signed the paid leave form. When the official responsible for the delay was apprised of the policy change, she promptly approved the paid leave request. The Postal Service also offered evidence that other management officials had made the same mistake as a result of the policy change. The First Circuit agreed with the lower court that delay was due to the local official's misunderstanding of the new USPS paid leave policy, not illegal retaliation.

In dicta (the Court, after all, had already ruled that the USPS did not violate the Act), the First Circuit opined that Roman had failed to establish entitlement to liquidated damages because the Postal Service established that "any delay in approving Roman's paid leave was a result of a good faith mistake..."

The Court affirmed the award of summary judgment in favor of the Postal Service.

Mr. Bosland Comments: I find the dicta in the decision interesting because it appears to suggest that evidence of a nondiscriminatory purpose (mistake) also met the criteria for relief from liquidated damages.

First, it equates a misunderstanding of a policy with acting in good faith. Courts have found that good faith requires proof that the employer took affirmative steps to comply with the FMLA.

There is little evidence that this occurred. Rather, from the decision, it appears that the manager did not investigation before delaying paid leave. The error was simply caught sometime later by a better informed FMLA coordinator.

Second, the Court did not address the second requirement for relief from liquidated damages: the employer had objectively reasonable grounds to believe that the act or omission did not violate the FMLA.

By the result, the court appears to be suggesting that ignorance of the employer's own policies may serve as objectively reasonable grounds to believe that an act or omission did not violate the FMLA.

Many courts have held that an employer's ignorance of their FMLA responsibilities fails to establish relief from liquidated damages. That is why the courts have imposed a duty to investigate the situation to ensure compliance.

It is unclear, at least to me, why an employer's ignorance of their own leave policies that arguably results in disparate treatment would satisfy the criteria for relief from liquidated damages whereas ignorance of the FMLA's regulatory requirements would not.

Perhaps the court did not feel obliged to address the matter in detail since the issue was moot anyway. Curious.

The First Circuit covers Maine, New Hampshire, Massachusetts, Rhode Island, and Puerto Rico.

Full post as published by New York Public Personnel Law on May 10, 2010 (boomark / email).