What You Don't Know Can Get You Sued

xecutives and managers could be at risk of personal financial ruin, to the tune of hundreds of thousands of dollars, from employee lawsuits if they violate the 1993 Family and Medical Leave Act. Some might think they are protected from personal suits and their agency is the proper party to file a claim against for such violations. Not so.

Unlike more familiar anti-discrimination laws, the Family and Medical Leave Act allows certain employees to sue individual executives and managers for errant leave decisions, in addition to suing the agency. Moreover, executives and managers are unlikely to avoid financial ruin because they were unaware of their FMLA responsibilities. On the contrary, lack of knowledge of the law's requirements could result in an award of double damages for a so-called willful violation.

While all federal employees are covered by the Family and Medical Leave Act, their rights and remedies can differ substantially, depending on which of the law's four federal-sector provisions applies. Two provisions each cover White House and congressional employees. Civil servants are protected by another provision, and U.S. Postal Service and other noncivil servant employees (e.g., part-time, temporary and other special categories) are covered by the fourth.

Federal employees can be covered under more than one provision of the FMLA. Executives and managers run the risk of being personally sued for violations when they apply the requirements of one provision to employees covered by another. Compliance with one provision does not ensure compliance with the law's other provisions.

KNOW THEIR RIGHTS

All employees share common basic entitlements. The law requires federal employers to allow eligible employees a maximum of 12 weeks of unpaid job-protected leave during a designated 12-month period for:

• The birth, adoption or foster care placement of a son or daughter.
• A serious health condition.
• Care of a son, daughter, spouse or parent with a serious health condition.

Postal and other noncivil service employees can file suit against an individual manager, supervisor and or the agency for violations of the FMLA. They also can file a complaint with the Labor Department, although administrative channels are not required. In rare instances, the Labor Department can initiate a civil action on behalf of a Postal or other noncivil service employee.

Civil service employees can challenge FMLA violations only through established agency or collectively bargained grievance procedures. The Office of Personnel Management's Office of Special Counsel can investigate and prosecute employee claims against the agency under certain circumstances.

White House and congressional employees have the right to sue their agency, but only after filing an administrative complaint. The mandatory administrative process includes a period for counseling and mediation. Only after that process is complete does the employee have the right to file a further administrative appeal or a federal civil action.

COMMON PITFALLS

To avoid violating the law, federal executives and managers must understand the FMLA requirements. Application of the requirements for civil service employees might not safeguard against (and, in fact, could cause) violation of provisions applicable to noncivil service employees.

For example, the civil service FMLA provision does not require agencies to post notices of family and medical rights and responsibilities. The noncivil service provision, on the other hand, requires all covered employers, whether they have eligible workers or not, to display an FMLA poster approved by the Labor Department. Each violation of this provision can result in a $100 civil penalty. It's likely that most federal agencies are in violation of the poster requirement.

The way in which employees request family and medical leave also varies. Under the civil service FMLA provision, employees must mention the law by name to invoke protections. By contrast, noncivil service employees do not have to mention the law at all when requesting leave. The employee only has to articulate facts suggesting that the need for leave falls within the protections of the law, and the agency must determine whether the situation qualifies for FMLA provisions. Executives and managers who fail to designate a noncivil service employee's leave as FMLA-protected because the employee did not specifically ask for FMLA leave could be violating the employee's rights.

PROVING A VIOLATION

An executive or manager could be liable for violating the FMLA absent knowledge or intent. There are two types of FMLA claims: those based on interference of entitlement and those based on retaliation or discrimination. Claims of interference do not require proof of discriminatory intent. Employees must only establish that they met all the requirements for family and medical leave protections and were denied their rights under the law. Intent must be established to prove retaliation or discrimination against employees who seek family and medical leave.

For example, say a manager appoints a vacancy board to make recommendations for an open position. Among other factors, the board considers attendance. But the agency is unaware of the different notice requirements for civil service and noncivil service employees under the Family and Medical Leave Act. The agency records absences for a noncivil service employee that should have been designated as FMLA-protected. The employee had articulated leave conditions that his supervisor should have known were covered under the law. But at the time, the employee did not specifically mention the law, and the absences were not recorded as FMLA-protected. The employee was not selected for the position in part because of absences.

In such a situation, the deciding official and the members of the vacancy board could be personally liable for violating the Family and Medical Leave Act. It doesn't matter that they were unaware that the attendance information contained FMLA-protected absences. If the employee was entitled to family or medical leave for the absences in question, then the managers involved would be liable, regardless of their knowledge or intent.

WHAT TO DO

To avoid costly litigation and ensure compliance with all applicable provisions of the Family and Medical Leave Act, agencies should immediately:

• Conduct an audit to determine the composition of the workforce.
• Review agency policies, handbooks, manuals, pamphlets, Web sites and other materials to ensure compliance.
• Train employees responsible for making decisions related to the Family and Medical Leave Act. In agencies with unions, changes to FMLA policies may require collective bargaining.