In the first case expanding the U.S. Supreme Court's recent decision in Burlington Northern v. White (2006) (addressing what constitutes an adverse employment action under Title VII) to a Family and Medical Leave Act (FMLA) case, a court in Arizona held that putting an employee on an involuntary paid leave was an adverse employment action in retaliation for requesting additional FMLA leave.
In the first case expanding the U.S. Supreme Court's recent decision in Burlington Northern v. White (2006) (addressing what constitutes an adverse employment action under Title VII) to a Family and Medical Leave Act (FMLA) case, a court in Arizona held that putting an employee on an involuntary paid leave was an adverse employment action in retaliation for requesting additional FMLA leave. See Foraker v. Apollo Group, Inc. (D. Ariz. 2006). The Arizona court stated that a reasonable employee likely would find such an administrative leave to be "materially adverse" as required by Burlington. The court held that the elimination of all job responsibilities, all contact with co-workers, all experience and education that would come from fulfilling one's job responsibilities, and all periodic performance reviews for an indefinite period of at least 12 months "well might have dissuaded a reasonable worker" from requesting FMLA leave.
The court dismissed the established line of cases holding that paid leaves could never be adverse actions, much less materially adverse, because they were all decided before Burlington. Although the court recognized that the plaintiff had suffered no money damages (because the leave was paid) it stated, however, that the FMLA "expressly authorizes injunctive relief," citing the provision that an employer may be liable for economic damages or "for such equitable relief as may be appropriate, including employment, reinstatement, and promotion." The court ordered a hearing to address the relief warranted by the jury's liability verdict, but noted that it "is uncertain about the kind of equitable relief that could be fashioned on the administrative leave claim." This does, however, allow the plaintiff's attorneys to seek all of their fees from the company
Employers' Bottom Line:
This case calls into question the common practice, especially in the public sector, of involuntarily placing someone on a paid leave. Although the decision is not binding outside of the court's jurisdiction in Arizona, it is possible that other courts will find the reasoning in this case persuasive. We hope that the case will be reversed on appeal and will continue to monitor the case.
If you have any questions regarding this case or retaliation claims in general, please contact the Ford & Harrison attorney with whom you usually work or the author of this Alert, Edmund McKenna, a partner in our Tampa office, at emckenna@fordharrison.com, or 813-261-7821.