FMLA Cases Prove Trying for Prosecutors
In cases where a plaintiff is seeking recovery over an FMLA benefit, there are 2 options available to them. One of these is interference, where the plaintiff (employee) has been denied their FMLA benefit that they are entitled to as long as they had provided notice. The other would be retaliation, where the employee used a protected FMLA right to directly cause and employer’s adverse action. These terms remain mutually exclusive in the eyes of the law and when a plaintiff brings suit after termination, they can win one but still fail another. There are 4 different ways for employers to abide by the current employment lawand calculate a rolling 12-month FMLA leave entitlement. The first is to base it on the calendar year, the second is to cause it on some other defined and fixed 12 month period, the third is to base it on the first day the employee uses their FMLA leave and finally, the last is a rolling 12 month period which is measured in reverse from the first day an employee uses any of their FMLA leave. Thus far, the rolling 12-month period has proven to be the most burdensome and trying for employers. However, using this method allows employers to prevent employees from “double-dipping” with their FMLA leave and save on the administrative headache that comes along with it.