Second Circuit Lowers Causation Standard for Employees Alleging FMLA Violations

This is from BakerHostetler LLP:

Last week, the Second Circuit joined the Third Circuit in lowering the causation standard in evaluating alleged Family and Medical Leave Act (FMLA) violations against employers. Under a lower “motivating factor” standard established in Cassandra Woods v. START Treatment & Recovery Centers, courts within the Second Circuit must consider whether the exercise of an employee’s rights under the FMLA was one “motivating factor” in the decision to fire the employee. Previously, the Second Circuit had adopted a higher “but for” standard, which considers whether the employer wouldn’t have fired the employee “but for” the employee exercising his/her FMLA rights, which considers whether the employer wouldn’t have fired the employee “but for” the employee exercising his/her FMLA rights. ...

In terms of the causation standard, Woods, and the U.S. Department of Labor (DOL) as amicus, urged the appeals court to give deference to the DOL regulation at 29 C.F.R. § 825.220(c), which states that “employers cannot use the taking of FMLA leave as a negative factor in employment decisions,” which they argued compels a “motivating factor” and not a “but for” causation standard. The appellate court found the DOL’s interpretation to be a reasonable one, vacated the jury verdict and remanded the case back to the lower court so that Woods can get a new trial, at which the jury can weigh the evidence under the lower standard.

Impact of This Decision

As a result of this decision, it is now easier for employees within the Second Circuit (specifically, in New York, Connecticut and Vermont) to prevail on claims alleging FMLA violations by their employers if they can demonstrate that their exercise of their FMLA rights was only one reason why their employers took the adverse employment actions against them. Therefore, employers should consult with experienced counsel prior to taking any adverse employment action against an employee who has exercised his or her FMLA rights, even if other reasons may exist for the adverse employment action.