Jottings By An Employer's Lawyer

Monday, July 03, 2006

5th Circuit Clarifies 2 FMLA Damage Elements


Last Friday the 5th Circuit upheld a contested FMLA termination case, but remanded for retrial on 2 damage elements. It found the Court erred by not using the FLSA/ADEA model for insurance benefits and retirement payout. Lubke v. City of Arlingon (5th Cir. 6/30/06) [pdf].

On insurance the correct standard is:
Either actual replacement cost for the insurance, or expenses actually incurred that would have been covered under a former insurance plan. The lost “value” of benefits, absent actual costs to the plaintiff, is not recoverable.
At his termination, Lubke received a payout of his pension. The 5th Circuit rule under the FLSA/ADEA, now applicable to the FMLA, is:

An employer’s portion of retirement and other payments made to a terminated employee must be deducted from an award of lost wages and benefits in ADEA discrimination cases.

Slowly, but surely, the courts are beginning to fill in the gaps of our newest employment law. 13 years after its passage, some might say -- about time.

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