New Lawsuit Takes On Common FMLA Trap

Originally published by Christopher McKinney.

A new lawsuit filed in a New York federal court takes on a common trap companies use to strip employees of return-to-work protections under the FMLA. The case is called Knight v. Deloitte Touche Tohmatsu Ltd., No. 1:20-cv-07114 (S.D.N.Y., Sept. 1, 2020).

The trap works by offering employees MORE than the 12 weeks of FMLA job-protected leave required by law. I’ve written about this FMLA trap previously.

According to the facts alleged in this suit, Deloitte advertises 16 weeks of parental leave for its employees. However, the program “comes with a huge catch,” according to the lawsuit. “[A]ny individual who actually takes the 16 weeks of leave offered to them by Deloitte loses the right to actually return to their prior position.”

The Plaintiff, Ms. Knight, said that following her return from leave in late 2019, she discovered that “not only would she not be returning to her prior position, but that Deloitte had no position for her at all.” How can this be? She was on FMLA, right? Well yes and no. As explained in her lawsuit, she was told there was no requirement to return her to her job because the Family and Medical Leave Act (FMLA) only provides 12 weeks of job-protected leave. Knight said she was told her role with the global professional services company might have been better protected had she returned from leave after the 12 weeks of FMLA leave instead of taking the additional time offered by Deloitte.

Over the last few years, we have seen many employers building in FMLA extensions into their medical leave policies like that used here by Deloitte.  The policies provide for MORE than 12 weeks of “Medical Leave” rather than the 12 weeks mandated by law. And, while more leave seems like a good thing, it can be a trap. This is because only the first 12 weeks of the medical leave period has job protection enforceable under the FMLA. If the employee stays out beyond 12 weeks, their job is no longer protected by federal law, even though the employer’s own policy granted and encouraged the employee to take more than 12 weeks of medical leave.

These carefully laid traps for unwary employees are, in a word, despicable. The companies that utilize this type of policy truly have no shame. Perhaps the Knight case will be the first step to making this type of corporate malfeasance illegal. But unless and until that happens employees must remember that no matter what anyone at the company tells you, you only have FMLA job protection for the 12 weeks mandated by the statute.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

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