Wednesday, March 30, 2011

9th Circuit Holds Employers Must Prove Reasons for Denying Reinstatement after FMLA Leave

In a case of first impression out of the Court of Appeals for the Ninth Circuit, it was held that the district court improperly placed the burden on the employee in her Family and Medical Leave Act (FMLA) interference case to prove that the employer had no reasonable cause for not reinstating her.

The 9th Circuit said that, to prove an FMLA interference claim, the “employee must establish that: (1) [she] was eligible for the FMLA’s protections, (2) [her] employer was covered by the FMLA, (3) [she] was entitled to leave under the FMLA, (4) [she] provided sufficient notice of [her] intent to take leave, and (5) [her] employer denied [her] FMLA benefits to which [she] was entitled.” Further, evidence that an employer failed to reinstate an employee “to her original (or an equivalent) position establishes a prima facie denial of the employee’s rights under the FMLA.”

However, and obviously, the right to reinstatement is not absolute. The regulations ( 29 C.F.R. § 825.214(b)) do not state who bears the burden of showing whether the employer had a reasonable basis to refuse reinstatement. In reaching it decision, the Court looked to other parts of the FMLA regulations and found the burden of proof is on the employer to show it had a legitimate reason to deny reinstatement. Likewise, the majority of other circuits that have addressed this issue ( including the Eighth, Tenth and Eleventh) have held that the regulations “validly shift[] to the employer the burden of proving that an employee . . . would have been dismissed” regardless of the FMLA leave. Thus, the Court held, “[W]hen an employer seeks to establish that he has a legitimate reason to deny an employee reinstatement, the burden of proof on that issue rests with the employer.”

The Court ordered a new trial. The case is Sanders v. City of Newport, No. 08-35996 (9th Cir. Mar. 17, 2011).

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