Jottings By An Employer's Lawyer

Tuesday, December 07, 2004

8th Circuit Adopts Standard of Willfulness for FMLA - And the Power of Recorded Words


The 8th Circuit today joins the 1st and 6th Circuits in applying the FLSA standard of willfulness in determining whether the 2 or 3 year statute of limitations is applicable under the FMLA. The standard: "the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute.” Hanger v. Lake County, Minnesota (8th Cir. 12/7/04) [pdf]. The Court helpfully pointed out what is not sufficient to prove reckless disregard under the statute:
the employer’s general knowledge regarding a statute’s potential applicability; and
its failure to obtain legal counsel on whether there is a potential FMLA violation,
apparently even combined, is not sufficient to make the 3 year statute of limitations applicable.

Since that was the only evidence here, the 2 year statute was applicable, sinking the case of Ms. Hanger who sued more than two years after she returned from FMLA leave. She claimed it was was not the same or an equivalent position to which she returned. Although the pay and benefits were the same, she no longer was to communicate directly with the Board of Commissioners, but had to go through a Ms. Parkinson, hired while Hanger was on leave and retained even after Hanger returned. Hanger also was forced to submit time sheets for the first time. However, since all those conditions were in place two years before she sued, Hanger's case was dismissed with no ruling on the merits.

Although disappointing, it would probably be worse if Hanger had not already had some measure of satisfaction against the County. Within two weeks of her return, an incident between her and her now new supervisor, Ms. Parkinson, led her to resign and complain that her rights under the Minnesota Veterans Preference statute had been violated. At a hearing on her claim, three Commissioners testified that they never intended to put Parkinson in a position of authority over Hanger. Unfortunately for the Commissioners, that testimony was contradicted by the tape recording of the meeting preceding Hanger's return where the Board "specifically discussed where to put Ms. Parkinson in the chain of command," and "Commissioner Chair Nelson stated that he intended to place Ms. Parkinson in a position of authority over Ms. Hanger." Faced with the tape recording, the Commissioners withdrew their opposition to her Veterans claim and reinstated Hanger to her former position with full responsibilities.

Although today the Commissioners won the FMLA claim, one suspects that this matter was a valuable reminder to the Commissioners of the power of recorded words, whether in a letter, email or a tape recording.

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