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.
Cassandra Woods v. START Treatment & Recovery Centers
In Cassandra Woods v. START Treatment & Recovery Centers, Woods, a former substance abuse counselor at START, a nonprofit that offers treatment to narcotic-addicted patients, alleged she was unlawfully terminated after she exercised her rights under the FMLA. START defended that Woods' termination was due to her poor performance, for which she received enhanced training and was even put on probation. Woods suffered from severe anemia and other medical conditions. She alleged that START improperly denied her requests for FMLA leave on several occasions, at least once because she was on probation. While on probation, she was hospitalized for seven days. START conceded that the leave due to Woods' hospitalization was protected under the FMLA, yet it fired her a few weeks later due to her poor performance. Woods then sued START, alleging interference and retaliation under the FMLA.
The district court concluded that FMLA retaliation claims arise under 29 U.S.C. § 2615(a)(2). In analyzing that provision, it concluded that Woods was required to demonstrate that her FMLA leave was the "but for" cause of her termination – and not a "motivating" factor in the decision, as Woods argued. As such, the jury applied the higher standard and returned a verdict for START. Woods appealed, arguing that retaliation claims actually fall under a different position of the FMLA and, as a result, the trial court should have applied the lower "motivating factor" causation standard.
On appeal, the Second Circuit found § 2615(a)(2) to be the source of FMLA retaliation claims because it prohibits employers from interfering with, restraining or denying the exercise of an employee's FMLA rights. On the other hand, § 2615(a)(1) prohibits adverse employment actions that discriminate against employees and was not applicable to the case.
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.
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