Bay Area Employment Lawyer Blog

Under federal law, an employee can bring a claim against an employer for failure to reinstate him or her after a family leave permitted under the Family & Medical Leave Act (FMLA) (state law provides the same protection under the California Family Rights Act (CFRA)). An employer can defend against such a claim by proving that it has a legitimate reason to fail to return the employee to work, such as the employee cannot perform the essential functions of the position. 29 CFR Section 825.214(b). After Ms. Sanders took a one month family leave due to chemical sensitivities, her doctor returned her to work. Sanders and her doctor believed she could return to work because her employer, the City of Newport, had stopped using the type of paper that was causing her medical problems. The City of Newport refused to reinstate her, claiming that it could not provide her with a safe workplace, and did not know exactly what caused her chemical sensitivities. Sanders v. City of Newport, __ F.4d ___ (9th Cir. March 17, 2011).

This case was tried in federal district court in Oregon on both a FMLA and a state family leave claim under Oregon law. Regarding the FMLA claim, Ms. Sanders asserted that it was the employer's burden to prove that she was denied reinstatement for a legitimate reason. The district court disagreed, and instructed the jury that it was the employee's burden of proof. Thankfully, the Ninth Circuit reversed, agreeing with Ms. Sanders, and establishing the important precedent that the employer bears the burden of proof on its claim that it has a reason not to return an employee back to work after a family leave.
Employees in California also have the protection of CFRA and CFRA itself indicates that the employer must "guarantee" reinstatement. Gov. Code Section 12945(a) and 2 Cal. C. Regs. Section 7297.2(a), (c). Although this doesn't address the burden of proof issue, presumably the courts will interpret CFRA the same as FMLA for this issue.
Who bears the burden of proof in any case and on any issue is often an unglamorous but exceedingly critical point. An employee has the right to reinstatement after a family leave. This is an important and fundamental right. Forcing an employee to disprove the employer's own assertion that there was good reason to violate the right to return to work after a FMLA leave would have turned this important right on its head. The Ninth Circuit's family friendly ruling, making the employer prove its case, was the only sensible solution.

Jody LeWitter
April 23, 2011

Mr. Kasten was fired by Saint-Gobain because he complained that the company prevented its workers from being paid for the time they spent "donning and doffing" (putting on required protective gear). He claimed that the location of the company's time clocks caused this problem. Kasten v. Saint-Gobain Performance Plastic Corp., __ U.S. __ (March 22, 2011).

The Fair Labor Standards Act prohibits employers from discharging "any employee because such employee has filed any complaint" asserting a violation of the Act. 29 U.S.C. Section 215(a)(3). This case turned solely upon the Supreme Court's holding that the phrase "filed any complaint" includes the making of an oral complaint, here to Saint-Gobain's officials.

The Court held that the "purpose and context" of the anti-retaliation provision led it to this interpretation. It noted that very real problems could occur if the provision did not protect those who complained orally: it could prevent government agencies from using hotlines; it could discourage the use of informal workplace grievance procedures; and it could make it difficult for workers who are less educated to complain. This led the Court to adopt a broad interpretation of the statute.

It is a cause for celebration every time this Supreme Court, with its largely pro-business slant, votes for the rights and concerns of employees. This case does provide more protection for employees around the country who complain about wage and hour violations, although the Ninth Circuit had, already, interpreted FLSA this way, to include oral complaints and thus California employees were already protected when making oral complaints. Lambert v Ackerley, 180 F.3d 997 (9th Cir. 1999).

The Court did note that Saint-Gobain argued to the Supreme Court that FLSA's anti-retaliation provision only applied to complaints to the government, not to private employers. Holding that Saint-Gobain abandoned this argument, the Court may have unnecessarily muddied the waters around this issue, as complaints to the employer, private or otherwise, are just the types of complaints that have historically been protected. Over ten years ago, the Ninth Circuit, noting well established law, clearly ruled that complaints to the employer are protected. Lambert v Ackerley, 180 F.3d 997 (9th Cir. 1999). Indeed, if the "purpose and context" of FLSA's anti-retaliation provision covers oral complains, it should covers complaints to non-governmental organizations and complaints by an employee to his or her own employer. After all, it would be illogical for this Supreme Court to urge employees to go straight to the government to complain about FLSA violations and leave the employer/private business out of the loop.

Jody LeWitterApril 7, 2011