Category Archives: Family and Medical Leave Act (FMLA)

Family and Medical Leave Act (FMLA), Liquidated damages

Interference Claims Under the Family and Medical Leave Act: What Employees and Employers Need to Know

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The Family and Medical Leave Act of 1993 (FMLA) provides eligible employees with the right to take unpaid, job-protected leave for certain family and medical reasons. But what happens when an employer allegedly blocks, discourages, or denies that leave? That’s where the interference claim comes in. This article dives into the legal foundation for FMLA interference claims, what employees must prove, the defenses employers can raise, and the damages available to successful claimants.

Whether you’re an employer trying to comply with your FMLA obligations or an employee wondering if your rights have been violated, understanding interference claims is essential.

What Is an Interference Claim?

The FMLA prohibits employers from interfering with, restraining, or denying the exercise of—or the attempt to exercise—any rights provided under the Act. This broad language gives rise to the interference claim, sometimes called a “§ 2615(a)(1) claim” after the statute that creates it.

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Family and Medical Leave Act (FMLA), Pregnancy discrimination

The FMLA and Intermittent Leave: Balancing Flexibility with Compliance

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Introduction
The Family and Medical Leave Act (FMLA) is one of those workplace laws that almost everyone’s heard of—but few really understand until they’re knee-deep in paperwork, doctor’s notes, and questions about what counts as “serious.” And among the most misunderstood areas? Intermittent leave.

Whether you’re representing a clinic juggling nurse schedules or advising a worker managing migraines or caregiving duties, intermittent FMLA leave is where things get tricky. It’s flexible by design, but that flexibility can also create confusion and conflict on both sides of the employment relationship.

What Is Intermittent FMLA Leave?
First, the basics. The FMLA, 29 U.S.C. § 2601 et seq., allows eligible employees to take up to 12 weeks of unpaid, job-protected leave per year for qualifying reasons:

  • A serious health condition;
  • To care for a spouse, child, or parent with a serious health condition;
  • Birth or adoption of a child;
  • Certain military-related events.
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Contract Issues, Employee handbook, Family and Medical Leave Act (FMLA), Harless wrongful discharge, Title VII of the Civil Rights Act of 1964, Whitle blower claims (including Harless), Worker's compensation retaliation, WV Human Rights Act, WV Human Rights Commission

“At-Will” Employment in West Virginia: What It Really Means (and What It Doesn’t)

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Most folks in West Virginia—employers and employees alike—have heard the phrase “at-will employment.” It gets tossed around a lot, especially when someone’s been fired and is trying to figure out if it was legal. But like a lot of legal phrases, “at-will” means more (and sometimes less) than people assume.

In this article, we’re going to take a clear-eyed look at what at-will employment actually means under West Virginia law, the key exceptions to it, and how courts treat wrongful discharge claims. Whether you’re running a business or advising a worker, understanding these rules is crucial to avoiding (or pursuing) a lawsuit.

The Basic Rule: At-Will Employment Means Either Side Can Walk

The general rule in West Virginia—and most other states—is that employment is presumed to be at-will. That means an employer can terminate an employee for any reason, no reason, or even a bad reason, just not an illegal one. Similarly, employees can quit at any time without notice or explanation.

This doctrine has been around forever. It’s grounded in common law principles and reinforced by state court decisions. But, as always, the devil is in the details.

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Americans with Disabilities Act, Disability discrimination, Family and Medical Leave Act (FMLA)

The Family and Medical Leave Act (FMLA): What Employers and Employees Need to Know

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Life happens—whether it’s the birth of a child, a serious health condition, or the need to care for a sick family member. The Family and Medical Leave Act (FMLA) provides eligible employees with the right to take unpaid, job-protected leave in these situations. But FMLA can be tricky, and both employers and employees need to understand their rights and responsibilities.

What Is FMLA?

The FMLA is a federal law that requires covered employers to provide eligible employees with up to 12 weeks of unpaid leave per year for specific medical and family-related reasons (29 U.S.C. §2612). During this time, employees’ jobs and health benefits are protected.

Covered reasons for FMLA leave include:

  • The birth, adoption, or foster placement of a child.
  • A serious health condition that prevents an employee from performing essential job duties.
  • The need to care for a spouse, child, or parent with a serious health condition.
  • Qualifying exigencies related to a family member’s military service.

Additionally, the FMLA provides up to 26 weeks of leave for employees caring for a covered servicemember with a serious injury or illness (29 U.S.C. §2619).

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Artificial Intelligence, Employment policies, Equal Employment Opportunity Commission, Family and Medical Leave Act (FMLA), Independent Contractors, Non-compete agreements, Wage and Hour Issues

Evolving Landscape of Employment Law: Key Updates for 2025

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If you’re an employer or an employee, keeping up with employment law changes can feel like chasing a moving target. With new court decisions, legislative updates, and evolving workplace norms, it’s more important than ever to stay informed. As we settle into 2025, here are some of the most significant developments shaping employment law across the country—and particularly in West Virginia.

1. Remote Work and Wage & Hour Compliance

The pandemic may be in the rearview mirror, but remote and hybrid work are here to stay. That shift has raised fresh legal questions, particularly when it comes to wage and hour compliance.

A major trend we’re seeing is increased scrutiny from the U.S. Department of Labor (DOL) regarding remote workers’ overtime eligibility. The Fair Labor Standards Act (FLSA) requires employers to track hours worked accurately, but when employees are logging in from home, compliance gets tricky. Employers must ensure that non-exempt employees are properly recording breaks, overtime, and any “off-the-clock” work.

West Virginia businesses with remote employees should take a close look at their time-tracking policies to avoid potential wage claims. Even an honest mistake—like failing to count time spent responding to emails after hours—can lead to costly litigation.

2. Noncompete Agreements Under Fire

Noncompete agreements have been a hot-button issue in recent years, and 2025 is shaping up to be a turning point. The Federal Trade Commission (FTC) issued a rule (April 2024) with a nearly comprehensive nationwide ban on most noncompete clauses, arguing that they stifle job mobility and wage growth.

I will discuss below the legal challenges to the FTC rule, but employers should review their existing agreements and consider whether noncompetes are still enforceable (in light of applicable state law and the prospect of the FTC rule surviving legal attacks) or if alternative protections—such as confidentiality and nonsolicitation clauses—are a better approach.

Status of the FTC rule

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Americans with Disabilities Act, Disability discrimination, Drew Capuder, Family and Medical Leave Act (FMLA), Seminars

Drew Capuder Will Be Speaking at Sterling Employment Law Seminar

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On March 29, 2017, I will be speaking and presenting an article on “The Perilous Intersection of FMLA and ADA,” at a seminar hosted by Sterling Education Services. The Seminar, “Employment Law: Rights, Benefits, and Emerging Issues,” will take place in Morgantown, West Virginia. If you would like to attend the seminar click here for more information and a registration form.

Here is the agenda for my speech and article:

  1. FMLA updates
  2. ADA updates and EEOC guidelines
    1. Expansion of what can be considered a “disability”
    2. What constitutes “reasonable accommodation” according to the EEOC
    3. Discrimination and violations
    4. Review and update written policies and job descriptions
  3. Overlap of FMLA and ADA: finding the right balance
Family and Medical Leave Act (FMLA), Labor Unions, Pending legislation, WV Legislation

Legislative Update: Pending bill would expand sick leave rights for West Virginia employees

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House Bill 2770, which was recently introduced into the West Virginia House of Delegates, would create the “Flexible Leave Act” to allow employees to take already earned paid leave, and to use that leave for paid time off for an illness of the employee or the employee’s “immediate family”. The bill does not give employees any additional paid leave—it only allows them to take their paid leave that they have already earned under their employers’ policies, and allows the flexibility (hence the name, “Flexible Leave Act”) to take leave that may have been intended for another purpose, such as earned vacation time, and apply it for the different purpose of their own or an immediate family member’s illness.

On January 24, 2011, Delegates Caputo, Fragale, Hatfield, Martin, and Moye introduced House Bill 2770, which is being referred to the Committee on Energy, Industry and Labor, Economic Development and Small Business then Finance. You can keep track of the progress of the bill by going to the Bill Status page and entering 2770 in the “Enter Bill Number” field. For information on the bill’s sponsors, or on any other members of the Senate, you can go to the House Members page and pick the member from a drop-down list. For those of you who are interested in finding out more about the legislative process, the Legislature has a “How a Bill Becomes Law” page.  The Legislature also has a very nice photo gallery of the Capitol Building.

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Family and Medical Leave Act (FMLA), Fourth Circuit, Interest, Liquidated damages, Result for Employee

Back from the USSR: FMLA Retaliation, 4th Circuit Decision in Dotson v Pfizer

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Retaliation law is one of the most developing (and dangerous) areas of employment law. I recently spoke at the West Virginia Employment Lawyers Association’s annual conference on retaliation law, and I wanted to go back and discuss an important Fourth Circuit decision on the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq.

Dotson v. Pfizer: Adoption and the FMLA

The decision is Dotson v. Pfizer Inc., 558 F.3d 284 (2009), and involved allegations of retaliation stemming from leave taken for an international adoption from Russia.

The jury awarded $1,876 in damages on the FMLA interference claim and $331,429.25 on FMLA retaliation claim. The judge then awarded $333,305.25 in statutory liquidated damages, $375,000 in attorneys’ fees, and $14,264.88 in court costs. Both sides appealed. The Fourth Circuit rejected all aspects of the employer’s appeal, but found the trial court made a mistake in refusing to award the plaintiff pre-judgment interest.

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Family and Medical Leave Act (FMLA), Sexual orientation

FMLA now applies to leave for care of children by same-sex couples

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The United States Department of Labor recently issued an Administrator’s Interpretation 2010-3 which applies leave rights under the Family and Medical Leave Act to care of children by same-sex couples. The US Department of Labor issued a press release to help explain the Administrator’s Interpretation. In other words, employees in same-sex relationships who qualify for leave under the FMLA will be entitled to protected leave for the qualifying care of their children.

As the DOL’s press release succinctly says, the “FMLA allows workers to take up to 12 weeks of unpaid leave during any 12-month period to care for loved ones or themselves”. (29 U.S.C. 2612; 29 C.F.R. 825.200).

What is a “son or daughter”?

The key issue was when the child fell into the definition of “son or daughter” for the employee seeking leave. When does the law recognize the child as the “son or daughter” of the employee?

Administrator’s Interpretation 2010-3 sets out the statutory language, and same-sex couples now have the necessary relationship to the child through the status of being “in loco parentis”, which more or less means someone who “stands in the place” of the parent. Here is the discussion in the Administrator’s Interpretation:

The FMLA entitles an eligible employee to take up to 12 workweeks of job-protected leave, in relevant part, “[b]ecause of the birth of a son or daughter of the employee and in order to care for such son or daughter,” “[b]ecause of the placement of a son or daughter with the employee for adoption or foster care,” and to care for a son or daughter with a serious health condition. See 29 U.S.C. § 2612(a)(1)(A) – (C); 29 C.F.R. § 825.200. The FMLA defines a “son or daughter” as a “biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is— (A) under 18 years of age; or (B) 18 years of age or older and incapable of self-care because of a mental or physical disability.” 29 U.S.C. § 2611(12). See also 29 C.F.R. §§ 825.122(c), 825.800.

(emphasis added).

Continue reading FMLA now applies to leave for care of children by same-sex couples →
Americans with Disabilities Act, Disability discrimination, Drew Capuder, Family and Medical Leave Act (FMLA), Hostile work environment, Sexual harassment

Drew Capuder will be speaking on disability and sexual harassment issues in Morgantown Oct. 20, 2010

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I will be speaking (and presenting articles)  at a seminar sponsored by Sterling Education Services on October 20, 2010 in Morgantown, West Virginia, entitled “Fundamentals of Employment Law”.

I will be speaking (and presenting articles) on “Sexual, Racial, and Other Harassment in the Workplace” and “ADA and FMLA Update”.

Here is the full agenda, and here is the faculty information. The seminar will provide around 6-8 hours of continuing education credit for lawyers (I don’t know the exact number, but the seminar is a full day).

You can register for the the seminar online. For further information, you can contact Sterling, and their number is 715-855-0498.