By Beth V. West
On February 25, 2014, the Ninth Circuit Court of Appeals issued its decision in Escriba v. Foster Poultry Farms, Inc., holding that employees who affirmatively decline to take FMLA leave do not have the protections of FMLA. Maria Escriba worked in a Foster Poultry Farms, Inc. (Foster Farms) processing plant in Turlock, California for 18 years. She was terminated in 2007 for failing to comply with the company’s “three day no-show, no-call rule” at the end of a previously approved two week period of leave that she took in order to care for her ailing father in Guatemala. Escriba filed a lawsuit under the Family and Medical Leave Act (FMLA) and its California equivalent, the California Family Rights Act (CFRA). The parties disputed the characterization of Escriba’s request for a two-week period of leave. Foster Farms claimed that Escriba requested vacation leave, not FMLA leave. Escriba claimed that Foster Farms knew the purpose of her leave was to care for her ill father and therefore her termination was an unlawful interference with her rights under the FMLA. Foster Farms responded that, although Escriba provided an FMLA-qualifying reason for taking leave, she explicitly declined to have her time off count as FMLA leave.
The trial court characterized the case as a classic “he said, she said” matter which focused on what Escriba told her supervisors. Escriba’s claims therefore proceeded to a jury trial in 2011. Before Escriba’s claims were submitted to the jury, both parties moved for judgment as a matter of law (JMOL). The trial court denied Foster Farm’s motion and took Escriba’s under advisement, pending the jury’s determination. After the jury returned a verdict in favor of Foster Farms, Escriba renewed her motion for JMOL and requested a new trial. The trial court denied both of her motions. Foster Farms, as the prevailing party, then moved to tax costs against Escriba but the trial court declined to do so. Both parties appealed the respective adverse rulings against each of them to the Ninth Circuit and it affirmed the trial court’s rulings on all issues.
When analyzing the merits of the case, the Ninth Circuit said that the FMLA does not expressly state whether an employee may defer the exercise of FMLA rights under the statute. The pertinent FMLA regulations promulgated by the Department of Labor in 1995, however, provide some guidance. After an employee alerts the employer of desiring to take leave for a reason that would qualify under the FMLA, the “employer will be expected to obtain any additional required information through informal means.” (29 C.F.R. § 825.303(b).) During this “informal” process, the employee will be expected to “provide more information.” Id.
The regulations go on to state that the “employee need not expressly assert rights under the FMLA or even mention the FMLA,” but the employer “should inquire further of the employee if it is necessary to have more information about whether FMLA leave is being sought by the employee, and to obtain the necessary details of the leave to be taken.” (29 C.F.R. § 825.302(c).)
The Court reasoned that, “an employer’s obligation to ascertain whether FMLA leave is being sought” strongly suggests that there are circumstances in which an employee might seek time off but intend not to exercise his or her rights under the FMLA. According to the court, “[a] compelling practical reason supports this conclusion. Holding that simply referencing an FMLA-qualifying reason triggers FMLA protections would place employers like Foster Farms in an untenable situation if the employee’s stated desire is not to take FMLA leave. The employer could find itself open to liability for forcing FMLA leave on the unwilling employee.” Therefore, the Court concluded that an employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeking the leave would have invoked FMLA protection.
The Court rejected Escriba’s claim that if an employee is permitted to affirmatively decline FMLA leave that would be tantamount to waiving it, and waiver of FMLA rights is not permitted under the regulations. Escriba pointed to the regulation providing that “[e]mployees cannot waive, nor may employers induce employees to waive, their rights under FMLA.” (29 C.F.R. § 825.220(d).) The Court found instead that affirmatively declining the present exercise of a right in order to preserve it for the future is fundamentally different from permanently relinquishing that right.
The Court concluded that viewing the evidence in the light most favorable to the jury’s verdict, there is substantial evidence that Escriba elected not to take FMLA leave. After her initial request for a leave to go to Mexico, there were two more meetings and Escriba was asked twice (through an interpreter) if she needed more time in Guatemala. Escriba twice answered “no.” Further, Escriba’s supervisor testified that she then told Escriba to visit the Human Resources Department if she later decided to request more than two weeks of leave. The Court found that a jury hearing this evidence could conclude that the supervisor had “inquire[d] further of the employee . . . about whether FMLA leave [was] being sought,” (per 29 C.F.R § 825.302(c)), and that Escriba’s two “no” responses clearly indicated that she did not intend to take FMLA leave. The Court also found that the fact that Escriba approached her supervisor in the first place rather than going directly to the Human Resources Department was in itself telling because, as Escriba conceded, her supervisor had previously approved all of Escriba’s vacation requests in, but Human Resources had handled all of her requests for FMLA leave – which the evidence showed, she had successfully requested on fifteen prior occasions. Thus, substantial evidence supported the jury’s verdict that Escriba did not intend to take FMLA leave.
Takeaway: This case was a win for the employer but employers should beware that this case is not a free pass for them to impose upon employees the responsibility of specifically requesting FMLA leave and/or requesting that qualifying leave be designated as FMLA leave. The Ninth Circuit’s decision in this case is very fact specific and each situation must be analyzed on its own based on the relevant circumstances.