by Michael Fox
Although the case is more complicated, as witnessed by the split decision, with one judge complaining the court should have gone further on the employee's behalf and another claiming it went too far, one holding that does seem clear is that the mere mischaracterization of leave as personal not FMLA, could in itself be a violation of the FMLA. Even if, as here, the plaintiff actually did not lose any rights since she was lawfully terminated while she was on leave. Liu v. Amway (9th Cir. 10/30/03) [pdf]. Just the unclear nature of the procedural issues in the case makes it unlikely that it will get higher review, but it certainly seems the holding that mischaracterization alone, where there was not an actual failure to give her any benefits required under the FMLA, is wrong.