A Capehart Scatchard Blog

Ninth Circuit Court Rules Employee Can Decline FMLA Rights Even If Absence Would Have Been FMLA Protected

By on April 25, 2014 in FMLA with 0 Comments

Maria Escriba worked for Foster Poultry Farms, Inc. for 18 years.  She met with her immediate supervisor on November 19, 2007, to request two weeks’ vacation time to care for her father in Guatemala who was very ill.  Her daughter purchased round-trip airfare for Escriba for November 23, 2007 with a return date of December 27, 2007, which was two weeks later than the request she made to her employer.

There was a dispute over Escriba’s conversation with her supervisor on November 19, 2007.  Escriba testified that she said she needed two weeks of vacation.  She also said that she asked for another free week or two over and above that; however, this alleged request by Escriba was disputed by her employer, who said no such request was ever made.  Escriba spoke primarily Spanish and her supervisor spoke only English, so her supervisor requested another conversation with her, this time with a translator. Another Foster Farms supervisor translated the dialogue into Spanish.  The supervisor twice asked Escriba if she needed more time to care for her father in Guatemala.  Escriba declined and said she only wanted to use two weeks of vacation time.   Escriba testified at trial that she did not go to human resources, because she intended to request vacation time, not family leave.

The supervisor filled out paperwork approving two weeks of vacation leave and told Escriba to go to HR if she decided she needed more time to care for her father.  Escriba never went to HR.  She did speak with the superintendent, who told her that if she found she could not return by December 10, 2011, she would have to fax a note to the HR office.

Escriba traveled to Gautemala, and soon recognized that she could not return by December 10, 2007 due to her father’s serious illness.  She did not contact HR to request additional leave, nor did she ask her husband to speak with HR, although he worked for the same company and was at work the entire time she was in Gautemala.Her employment was terminated for violation of the company’s three day no-call no-show policy.

Escriba sued under the FMLA, contending the FMLA prohibits waiving rights under the law and that her employer had a duty to designate her absence as FMLA regardless of her statements declining FMLA.  The Ninth Circuit Court of Appeals held that “an employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeking the leave would have invoked FMLA protection.”

The Court did note that regulations make clear that an employee does not have to expressly assert rights under the FMLA or even mention the FMLA.  It also conceded that an employer should inquire further of an employee to see whether FMLA leave is being sought by the employee.  However, the Court said as follows:

Holding that simply referencing an FMLA-qualifying reason triggers FMLA protections would place employers like Foster Farms in an untenable situation if the employee’s stated desire is not to take FMLA leave.  The employer could find itself open to liability for forcing FMLA leave on the unwilling employee.

Escriba argued that if an employer could require an employee to affirmatively decline FMLA leave it would be the same thing as making an employee waive rights under the FMLA.  The FMLA has a provision that prohibits waiver of prospective rights under the FMLA.  29 C.F.R. 825.220(d).  The Court said that this provision means only that an employee cannot trade off the right to take FMLA leave against some other benefit offered by the employer.  It did not mean that an employee could not expressly decline FMLA leave.

This case is significant because there are few, if any, reported cases that have recognized the right of employees to expressly decline FMLA leave where the reason for the leave would be protected under the FMLA.  It can be found at Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236 (9th Cir. 2014).


About the Author

About the Author:

John H. Geaney, a shareholder and co-chair of Capehart Scatchard's Workers' Compensation department, began an email newsletter entitled Currents in Workers’ Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates.

Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers. The manual is distributed by the New Jersey Institute for Continuing Legal Education (NJICLE). He also authored an ADA and FMLA manual as distributed by NJICLE. If you are interested in purchasing the manual, please contact NJICLE at 732-214-8500 or visit their website at www.njicle.com.

Mr. Geaney represents employers in the defense of workers’ compensation, ADA and FMLA matters. He is a Fellow of the College of Workers’ Compensation Lawyers of the American Bar Association and is certified by the Supreme Court of New Jersey as a workers’ compensation law attorney. He is one of two firm representatives to the National Workers’ Compensation Defense Network. He has served on the Executive Committee of Capehart Scatchard for over ten (10) years.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School. He has been named a “Super Lawyer” by his peers and Law and Politics. He serves as Vice President of the Friends of MEND, the fundraising arm of a local charitable organization devoted to promoting affordable housing.

Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Trenton, New Jersey. The firm represents employers and businesses in a wide variety of areas, including workers’ compensation, civil litigation, labor, environmental, business, estates and governmental affairs.


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