Here is a very instructive excerpt from
Von Briesen, summarizing the recently decided case of
O'Donnell v. Passport Health Communications, Inc., in the Third Circuit.
The court found that Passport did not interfere with O'Donnell's FMLA leave by continuing to contact her to negotiate the new position during her leave. First, Passport required that O'Donnell execute her offer letter and non-compete agreement before she requested or initiated FMLA leave. Thus, O'Donnell knew she was required to execute these forms before invoking her FMLA rights.
The court held that Passport's contacts with O'Donnell during her FMLA leave were not improper. Passport's contact was limited to the status of O'Donnell's employment decision, the execution of the documents, and ongoing salary negotiations at O'Donnell's behest. Human Resources contacted O'Donnell solely to remind her that her position had been eliminated and that if she wanted to accept the new position, she was obligated to do so formally by signing the required forms in a timely manner.
The court found that these de minimis contacts did not require O'Donnell to perform work for the benefit of the company. Furthermore, they did not materially interfere with her FMLA leave. The court stated that "There is no right in the FMLA to be 'left alone' and be completely absolved of responding to the employer's discrete inquiries." Passport's contacts were aimed only at retaining O'Donnell as an employee. These contacts did not "in any way hamper or discourage O'Donnell's exercise of her right to medical leave or attempt to persuade her to return from her medical leave early."
