9th Circuit Gives One Employer a “Win”—but Says Employees Can Have Their FMLA Cake and Eat It, Too

Managing employee use of Family Medical Leave Act (FMLA) can sometimes be an employer’s biggest headache. Escriba v. Foster Poultry Farms, Inc.—a new decision from the Ninth Circuit Court of Appeals—does little to alleviate those complications. It contains a critical development for companies subject to FMLA (generally, those with 50 or more employees) about whether an employee can actually waive their FMLA rights.

Escriba worked in a processing plant for Foster Farms. She asked her supervisor for two weeks of paid vacation time to care for her ailing father in Guatemala. That type of leave (caring for the serious health condition of a family member) would typically be FMLA-covered, but Escriba explicitly declined to have her time off count as FMLA leave. Apparently she wanted to preserve her protected medical leave for future use, and instead use paid vacation time first. When she proceeded to take even more “vacation” time to care for her father, she failed to timely notify Foster Farms… and was eventually terminated under a three day “no-show, no-call” policy.

In court, Escriba argued that it’s impossible to “waive” her right to FMLA, and since Foster Farms was on notice of a FMLA-qualifying reason for her leave, the termination was an act of unlawful retaliation. As a general rule, she’s right about waiver—an employer can’t say “sign this waiver of all your FMLA rights in exchange for your job” anymore than an employer can, say, ask an employee to waive their right to minimum wage. But the Ninth Circuit said Escriba could waive her right to use FMLA in this particular circumstance. It upheld the termination as lawful, where it appeared Escriba knowingly chose one benefit over another.

Sounds like a win for employers, right? Not so fast: Foster Farms may have won a battle, but this new ruling will likely cost employers as a whole. For example, it creates an opportunity for employees to “hoard” leave. Imagine this scenario:

Employee: “I need a couple weeks off, to tend to my ___ [insert serious health condition].”

Employer: “Ok! That’ll count toward your yearly FMLA leave allotment of 12 weeks.”

Employee: “Whoa, no thanks. I just want to use my vacation time now. I’ll save all 12 weeks of FMLA time for later this year, thank you very much.”

Under the Escriba decision, an employee could make this type of self-serving “waiver” of FMLA. Of course, if an employee waives their right to FMLA for a particular situation, the leave is no longer protected—and the employer could consider discipline or termination. But for our part, we’d exercise extreme caution before relying on this decision to terminate any leave-abusing employees. Consult with your legal counsel and ask yourself some key questions first, including these:

  • Is the employee knowingly waiving their FMLA rights? (I.e., do they understand the consequences of giving up that protection?)
  • Can I prove that in court? (The Karnopp Petersen employment defense team would sure hope to see clear documentation of the employee’s “knowing” or well-informed waiver of their rights… just sayin’.)

As always, think about whether any decision is consistent with how you’ve treated others in similar situations (i.e., others with a similar pattern of unprotected absences). Inconsistent treatment can easily open the door for an employee to claim the “real” reason was unlawful, and we think you’d agree: dealing with a FMLA retaliation claim is a much bigger headache than administering even the trickiest of medical leaves.