Prospective Employees are Covered
The Family and Medical Leave Act (FMLA) specifically allows an "employee" to sue his or her employer. The Act does not specify whether or not the term "employee" applies only to those employees currently working for the employer, or whether it includes prospective employees.
In July 1998, the First Circuit Court of Appeals answered this question in Duckworth v. Pratt & Whitney. The Court of Appeals gave an expansive reading to the FMLA to find that the Act does give a job applicant the right to sue for violations of the statute.
Mr. Duckworth was employed by Pratt & Whitney from 1980 to 1994, when he was laid off. During 1994, he missed 52 days of work due to a serious health problem which was covered under the employer's FMLA policy. In December of 1994, he then accepted a voluntary layoff. After the layoff, a supervisor completed an "Employment Termination Record", and noted on the form that Duckworth had "poor" attendance. Two years later, Duckworth reapplied to Pratt & Whitney, but was rejected based on the poor attendance notation. He then sued under both state and federal Family and Medical Leave Acts, alleging that Pratt & Whitney's refusal to rehire him in 1996 was based solely on his use of FMLA leave in 1994.
The First Circuit Court of Appeals found that the FMLA does apply to prospective as well as current employees. The Court relied on similar language from other statutes, such as the Americans With Disabilities Act and the Fair Labor Standards Act, which both regard an employee to be prospective, current or former.
The Court also found that FMLA's language supported its application to prospective employees, based on its reference to discrimination against an "individual" and the Act's requirement that notices about FMLA be posted in areas accessible to job applicants. The Court expressed concern that excluding prospective employees from coverage could create a backlash against protected groups, such as women of child-bearing age, who may use FMLA time.
The Court remanded the case on the issue of whether or not Mr. Duckworth would have been hired but for the fact that he had taken leave in 1994.
Employer Must Provide Equivalent Position
In December 1998, the First Circuit issued its second FMLA decision. In Watkins v. J& S Oil Company, the employee, a gas station manager, took his full FMLA leave after several heart attacks. The employer contacted him several times during his leave period, stating that his position as manager had been filled but mentioning other possibilities. Watkins was noncommittal. At the end of the leave period, the employer again asked Watkins if he was planning to return, and discussed two possible positions, one clerical and one as an attendant. Neither position paid the same as the manager position.
Watkins rejected both positions, then sued the employer under the FMLA and the ADA. The First Circuit affirmed the jury's verdict that the employer had failed to meet its burden of offering the employee an equivalent position at the expiration of his leave, pointing out that it is the employer's responsibility to offer the employee an equivalent job following FMLA leave. Because there had been no official "offer" from the employer of an equivalent position, the employee prevailed on his FMLA claim.