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Wednesday, October 28, 2009

FMLA Intermittent Leave: Same Work Loads?

Alabama@ Work
By Tommy Eden, Attorney

Reprint Opelika Auburn News 10-25-09

Debra Lewis, who worked for an Illinois School District as a bookkeeper, for 7 years had good performance reviews and when her parents became severely ill was given a flex-time schedule. She was also allowed to take work home.

Later in a closed door meeting the school board wanted Lewis fired for poor performance, but the superintendent was afraid of FMLA liability. He then offered Lewis 12 weeks of unpaid intermittent FMLA leave, which she accepted, telling her she was still expected to perform all the duties of a full-time bookkeeper. No part-time employee was hired which caused her to work unpaid nights and weekends.

Not happy with the arrangement, the school board later wanted Lewis fired and said the FMLA “ludicrous” and a "fiasco.” It was recorded on taped. The superintendent was told to build a case against Lewis based on her poor performance and that Lewis had a choice to resign or take a demotion and salary cut. Lewis took the demotion and sued under the FMLA. The school district claimed Lewis’ poor performance was a legitimate business reason to demote her. The local federal district court judge agreed with the school district citing at least 12 performance deficiencies unrelated to her absence. However, the 7th Circuit Court of Appeals recently reversed citing the school board’s hostile statements about her FMLA leave as direct evidence of FMLA retaliation and finding a jury question.

The Appeals Court held that, “a reasonable jury could conclude that the school district expected Ms. Lewis to complete all of the duties of a full-time bookkeeper while she was working on an essentially part-time basis…viewed in this way, a reasonable jury could find that the FMLA leave granted to Ms. Lewis was illusory…whether the school board decided to replace Ms. Lewis at least in part because she had inconvenienced the District by missing too many days of work under the FMLA, or whether the decision was based only on the fact that it felt that she was not a very good bookkeeper, is a question of fact that must be decided by a jury.”

Common Sense Counsel: what can Alabama employers do if an employee’s work performance suffers while taking FMLA intermittent leave? 1) Employees exercising their FMLA rights should not be held to the same production standard as full-time employees who are at work everyday; 2) do not ever record comments which show a negative bias on a tape, email, VM or memo or you will later find that smoking gun aimed at you; and 3) when faced with an FMLA leave request fill your needs with a temporary, which creates good will and is typically cheaper than hiring a lawyer.

Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-246-2901. Blog at