Penny Bachelder claims that her employer, America West Airlines, violated the Family and Medical Leave Act of 1993 when it terminated her in 1996 for poor attendance (Walsh, 2013). The district court granted partial summary judgment to America West, holding that Bachelder was not entitled to the Act’s protection for her 1996 absences (Walsh, 2013).
America West told Bachelder when it fired her that it based its decision on her sixteen absences since the January 1996 corrective action discussion (Walsh, 2013). If those absences were, in fact, covered by the Act, America West’s consideration of those absences as a “negative factor” in the firing decision violated the Act (Walsh, 2013). The regulations allow employers to choose among four methods for calculating their employees’ eligibility for FLMA leave, but they do not specifically state how an employer indicates its choice (Walsh, 2013).
America West contends, correctly, that the FLMA’s implementing regulations do not expressly embody a requirement that employers inform their employees of their chosen method for calculating leave eligibility (Walsh, 2013). The regulations nonetheless plainly contemplate that the employer’s selection of one of the four calculation methods will be an open one, not a secret kept from the employees, the affected individuals (Walsh, 2013).
This is where the airline made an error. The question remains whether America West adequately notified its employees that it had chosen the retroactive rolling “leave year” calculation method (Walsh, 2013). America West contends that, because its employee hand book states that “employees are entitled to up to twelve calendar weeks of unpaid FMLA leave within any twelve month period,” it provided sufficient notice to its employees that it uses the “rolling method” for calculating leave eligibility (Walsh, 2013).
Decisions adversely affecting employees on FMLA leave or recently returned from leave should be very closely scrutinized (Walsh, 2013). A common issue in FMLA cases, including Bachelder, is employees being disciplined or terminated based on absences due to FMLA leave (Walsh, 2013).
Whether framed as “interference” or “discrimination,” employers cannot base adverse employment decisions on the taking of FMLA leave (Walsh, 2013). After the court determined that Bachelder was entitled to FMLA leave for her absences in 1996, her termination for excessive absences that included those in 1996 violated the FMLA (Walsh, 2013). “No-fault” attendance policies, which count absences without regard to the reasons for them, are inherently in conflict with the FMLA and must be eliminated or allow for exceptions (Walsh, 2013).
From my understanding, and if I understood it right, I don’t believe any of the other three methods would have entitled Bachelder to leave for her 1996 absences. My reason for stating this is because due to the 1994 and 1995 FMLA leave, the calendar year would be the only method that would show she was entitled leave. Any of the other three methods would roll on top of one another and it wouldn’t work. Under the calendar year, it is immaterial that Bachelder had utilized her full allotment of FMLA-protected leave between April and June 1995 (Walsh, 2013). Because she began 1996 with a fresh bank of FLMA-protected leave, Bachelder’s February 1996 absences were covered by the Act.
References Walsh, D. (2013). Employment law for human resource practice. (4th ed.). Mason: South-Western.