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Merely Discouraging Employee from Taking Leave May Violate the FMLA

In Ziccarelli v. Dart, the Seventh Circuit Court of Appeals (which has jurisdiction over federal claims brought in Illinois) held that the Family and Medical Leave Act (“FMLA”) was violated when Mr. Ziccarelli’s employer threatened him with discipline if he used any more leave pursuant to the FMLA. The employee worked for the Cook County Sheriff’s Department for almost 30 years and, over the course of his employment, used FMLA several times. In September 2016, the employee called his employer’s FMLA manager, who allegedly told him, “[Y]ou’ve taken serious amounts of FMLA… don’t take any more FMLA. If you do so, you will be disciplined.” The employee retired soon after that conversation, stating that he feared dismissal. He then filed a lawsuit.

Initially, the lower court ruled in favor of the motion for summary judgment filed by the employer. However, the employee appealed on the grounds that his former employer interfered with his rights to use FMLA and retaliated against him for requesting FMLA leave. While the Seventh Circuit agreed with the lower court and ruled in favor of the employer on the retaliation claim, it held that, if the employee’s account of what happened is true, the employer violated the FMLA because “[t]hreatening to discipline an employee for seeking or using FMLA leave to which he is entitled clearly qualifies as interference with FMLA rights.”

In coming to its conclusion, the court rejected the employer’s argument that an actual denial of FMLA was required to constitute interference under the FMLA. The court relied on the plain language of the FMLA-interference provision, which it found to be unambiguous, and considered the U.S. Department of Labor’s regulations, which also supported the conclusion that an actual denial of FMLA leave was not required to interfere with an eligible employee’s rights under the FMLA. Rather, discouraging an employee from taking leave under the FMLA may also interfere with the employee’s rights.

The case has been sent back to the lower court for further proceedings. For any questions or additional information on this case or other questions involving FMLA issues, contact an attorney in our Labor/Personnel practice group.

Source: Ziccarelli v. Dart, et al., 35 F.4th 1079 (7th Cir. 2022)