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Friday, February 3, 2017

FMLA Done Wrong

  By Thomas Eden

Tracy Wink was a clerical employee for Miller Compressing Company from 1999 until 2012, and apparently did a good job and was thoroughly cross-trained. At some point during her employment, she had a son. The little boy, who was autistic, started going to day care, but he was expelled in 2012 because of his bad behavior.

The boy’s grandmother could take care of the boy three days a week, but not five. Ms. Wink asked to telecommute on the two days that her mother was unavailable. She submitted an FMLA certification from her son’s health care provider saying that her son was autistic and was a danger to himself and others.

Miller agreed that Ms. Wink could telecommute two days a week. If she worked, the time counted as regular time worked. But the time that she was unable to work because she was taking care of her son counted as FMLA leave.

The company also had a no-cell-phone policy but made an exception for Ms. Wink to take calls during the workday from her son’s health care providers.

 “This story’s about to go bad, isn’t it? I can just feel it.”
Everything seems to have gone fine until the summer of 2012. By then, the company had fallen on hard times and was making some reductions in force. Among the employees who would be staying, the company decided to ban all telecommuting and require the clericals to be onsite from 8 a.m. until 4 p.m. Monday through Friday. It also decided to ban all cell phone use during working hours, with no exceptions.

At the end of the workday on Friday the 13th the Human Resources Manager called Ms. Wink in and told her that starting the following Monday she would have to work onsite from 8 a.m. until 4 p.m. and would not be able to telecommute any more. She could have time off for her son’s doctor’s appointments and therapy, but that was it. And she wasn’t allowed to talk with her son’s health care providers during work hours any more. Ms. Wink started crying and said that she could not make alternate arrangements for her son by Monday morning.

There was more talk that evening, and on Monday morning, Ms. Wink told the HR Manager that she could not commit to the new schedule. The HR Manager directed that her “resignation” be accepted, with Friday as her last day worked.

The jury sided with Ms. Wink in her Wisconsin wage payment suit and her claim of FMLA interference. Last month the Seventh Circuit affirmed and awarded Ms. Wink additional attorneys’ fees.

Common Sense Counsel: If you are thinking about terminating an employee who is on FMLA leave or telling her that she can’t have intermittent leave any more — please do these things first.

Step 1: Consult with someone who really knows the FMLA.

Step 2: Empathize. Before you act, think about how you would feel if you were in the employee’s shoes, and act accordingly.

Step 3: Keep an open mind. If she cries and says it’s impossible to meet your demands take a time out and discuss it with your employment lawyer.

Step 4: Consider all options before you deliver ultimatums.

Step 5: As soon as you realize you made an FMLA mistake, fix it.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and can be contacted at or 334-246-2901. Robin Shea, Constangy partner posted this full story on the firm’s blog site this week.