FMLA Standard Defenses

annmarie · August 2003

This is a new subject for me as an attorney in Indiana and I need some quick answers. I need to know the Standard Defenses an attorney would use in an Answer to an FMLA complaint. Please advise! Thank You!

PAhr · August 2003

I'll touch this one. There is no standard defense. FMLA violations can range anywhere from counting an FMLA day under a no-fault policy to terminating someone who may have qualified under FMLA and almost every, single complaint will be different. Your best way to go about this is to sit down with the HR personnel who were directly involved and go over with them everything that happend from the time of the application up to the present. Depending on what the claimed infraction is, you need to have good, solid answers to back up the decisions that were made. That should be your defense. I don't know if this was in your post or not but is this a complaint from the DOL or is this a lawsuit notification? Makes a big difference on how to go about it.

vmiller MO · August 2003

Standard defenses are (1) employee is not eligible (2) the reason for the leave is not a FMLA reason (3) complied with the law. In order to discuss other possible defenses, it would be necessary to know what the allegations are.
Vance Miller
Editor, Missouri Employment Law Letter
Armstrong Teasdale LLP
(314) 621-5070
[email]vmiller@armstrongteasdale.com[/email]

Don D · August 2003

Sounds to me like a standard defense to a ticket for running a redlight: There was no redlight at that location. I was not driving that car. There was no officer at that location. I'm no lawyer but I played one in a school play and love to argue with them. Semantically, are these not 'possible defenses' rather than a 'standard defense', since there is nothing really 'standard' about a list of various, unstandard, possibilities?

On another note, it is highly unusual to see a lawyer seeking legal advice on The Employers Forum. I don't know if I'm surprised or impressed.

In essence there are only about 8 or 9 things an employer can do that might violate FMLA protections. But, are all of these not potential defenses? Let's see: employer did comply with the law in posting policy and making it available to employees, employer is not covered under the ACT, employee was not eligible for FMLA, employee did not comply with application requirements, no medical certification was provided, medical certification did not meet definitions of serious medical condition, employee did not comply with requirement to provide periodic update, ee did not return nor request extension at conclusion of leave, employer did return ee to work in accordance with the ACT.

Maybe I didn't understand the question. I should know that VMiller is always (fairly) accurate.

PAhr · August 2003

I will agree with vmiller that the three he noted are pretty standard defenses, but only in a perfect world. Usually when an employee files a complaint with the DOL or a lawsuit with an attorney, the intake officer or attorney has already gone over if the employee is eligible and if the condition qualified so the first two defenses are moot. And a standard "complied with the law" just doesn't cut it. FMLA is so complicated that almost every case is different, thus calling for a different defense. And when you throw retaliation into the mix almost every aspect of FMLA can come into play, adding more to be defended. I'd rather defend a murder charge. There you do have standard defenses 1)didn't do it 2)self defense 3)did it, but I was nuts or 4)all the Twinkies made me do it.

Don D · August 2003

You're exactly right, according to my experience with FMLA investigations. I wouldn't sit comfortably with just a handful of standard defenses for FMLA charges. There could be as many as 20 angles to the charge and the employer's possible violation. Only a good operating knowledge of FMLA, laced with a close interraction with employers who 'manage' it, will give a lawyer sufficient practical knowledge and experience to jump on top of an FMLA defense.

FMLA Standard Defenses

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