by Michael Fox
In a case of first impression in the First Circuit, the Court found that the test for a willful violation of the FMLA which would extend the statute of limitations to two, not three, years should be the one used for the FLSA. That standard the Court said was:
If an employer acts reasonably in determining its legal obligation, its action cannot be deemed willful . . . . If an employer acts unreasonably, but not recklessly, in determining its legal obligation, then . . . it should not be . . . considered [willful.] [cites omitted] In crafting this understanding of the term willful, the Court expressly rejected two other tests for determining willfulness: the Jiffy June test that asked only whether the employer knew the Act "was in the picture," Coleman v. Jiffy June Farms, Inc., 458 F.2d 1139, 1142 (5th Cir. 1972), and another test that asked if the employer acted unreasonably in believing it was complying with the statute. McLaughlin, 486 U.S. at 134.
Here the plaintiff could not establish a willful violation which resulted in his FMLA claim being time barred. It was an all around bad day as he also failed to convince the court to reverse the summary judgment granted the employer on his age and gender discrimination claim. Hillstrom v. Best Western TLC (1st Cir. 12/31/03).