11th Hour Decisions: Ill Advised When It Involves FMLA

 April 2012

Navigating FMLA requirements, meeting timelines, certification requirements and treatment of employees while off on continuous or intermittent leave can be challenging even for an experienced FML administrator.  Most employers lack full understanding of the FMLA and the implications or “risks” in failing to meet FML regulatory requirements.  Believing that they are “in the right”, employers engage in legal banter with the DOL and/or the employee’s legal counsel and therefore must gather background data (documentation) to defend their position.  Often finding that their practices, as it pertains to a specific or similar case, are questionable.  The end result is a lot of time and expense defending the employer’s practice decisions and policies. 

We hear very little about employer success in DOL/FMLA claims, but frequently hear about “what went wrong and how much it cost”….

Case in point ~  In Shaffer v. American Medical Association (AMA) the employer’s mistakes/challenges are not unusual and are avoidable with proper training and a clear understanding of applicable state and Federal FML Laws.


Mr. Shaffer was hired in 1999 and worked for the AMA in a number of capacities. In 2008, Shaffer became the AMA’s Director of Leadership Communications. His responsibilities included: writing speeches, editorials, and managing three writers.

In late 2008, due to the economic downturn the AMA initiated some cost cutting moves and decided to reduce department budgets by 3%.  Following the cost cutting efforts, the AMA board met and decided that a reduction in workforce was needed to further reduce budgets (not uncommon to review labor and associated cost as part of an expense reduction initiative). An outcome of the labor cost reduction initiative was to reduce each department by one employee(4 total employees ? including Mr. Shaffer). 

Here is the story… Marietta Parenti, Chief Marketing Officer, and Michael Lynch, Mr. Shaffer’s direct supervisor, made the decision to reduce the department by 1 person. 

In October, 2008  Lynch emailed his recommendation for the layoff identifying an employee ? not Shaffer to be laid off.  Stating that the position was no longer relevant and was already planned to be eliminated. Parenti suggested including Shaffer as well, but Lynch responded that the additional cut would not be advisable and included reasons. 

In November of 2008, Shaffer informed Lynch that he would require FML in January of 2009 for a knee surgery (meeting the advanced notification requirement as required under the FMLA). Later that month (November 2008)  Lynch emailed Parenti and indicated that he had an “11th hour change of heart” and decided to eliminate Schaffer instead of the previously named employee. Lynch also wrote that the team was preparing for Shaffer’s leave so the elimination of his position would not negatively impact his department.

What went wrong?

Two weeks after Schaffer indicates his need for FMLA –  Lynch has an “11th hour change of heart”.  Lynch specifically refers to Shaffer’s planned FMLA leave in January within the email. The court found that a reasonable jury could find that Mr. Schaffer’s need for FMLA affected the decision to eliminate his position. In addition to Lynch’s email, there was also evidence that documents were used to cover up unlawful activity.

What should employers take from this case?

?      FMLA does not protect an employee from layoffs, but the reason behind the layoff should never take FMLA into account. The decision to layoff an employee on FMLA must be clear and well thought out.

?      Any correspondence regarding the termination of an employee should never refer to the employee’s FMLA.

?      Referring to an employee’s FMLA in any communication is enough to cause the burden of proof to shift heavily to the employer’s side. 

What’s Next In Shaffer v. American Medical Association (AMA)

In summary, the AMA won at the initial trial, but upon appeal the Circuit Court found fault with the previous court decision. It reversed the previous decision (finding against AMA) and remanded the case for further proceedings – which most likely means another trial or settlement …