No Harm, No Foul for Employer’s Technical Non-Compliance with FMLA’s Notice Requirements.


According to the U.S. Court of Appeals for the Eleventh Circuit, “an employee doesn’t suffer harm from an employer’s technical non-compliance with the Family and Medical Leave Act’s notice requirements when she receives all her requested time off and is paid for her absences.”

The FMLA provides up to 12 weeks of leave to care for a family member with a serious health condition, among other reasons, and employers are prohibited from interfering with employees’ rights under the Act. Employers have various notice obligations to employees under the FMLA. In particular, employers must provide employees with an “eligibility notice” and a “rights and responsibilities notice” (for which the Department of Labor has provided models) when an employee requests leave or when the employer becomes aware that an employee’s leave may be for an FMLA-qualifying reason. The employee does not have to specifically mention “FMLA” for the notice obligation to be triggered.

In Graves v. Brandstar, Inc., an employee told her employer that she needed several days of leave to care for her father while he underwent emergency surgery. This leave was FMLA-qualifying, but the employer failed to provide the required notices. The employee argued that this failure constituted unlawful interference with her FMLA rights. In order to sustain an “interference” claim, a plaintiff must show that they were entitled to a benefit under the FMLA, that they were denied the benefit, and that they experienced harm as a result. In this case, because the employee received all the leave she requested, with pay, the Eleventh Circuit found that she suffered no harm from the employer’s technical failure to provide the required notices and rejected her claim.

Although the ruling was good news for the employer, we note that the failure to provide notice was still problematic, in that the employer incurred significant costs and spent a great deal of time to defend against the claim. Thus, the real lesson here is that employers must make sure that they understand and recognize when notices are required, and then provide the required notices in a timely manner.

This case also illustrates another point of interest. The employee also sent an email requesting flexibility to prepare her home for her father’s move, and she contended that this also triggered the notice requirements. The Eleventh Circuit noted, however, that an employee must actually seek leave of some sort – which did not happen here – in order to trigger the notice requirements.