West Virginia Supreme Court of Appeals Clarifies Employee’s Burden of Proof for FMLA Interference

By: Allison B. Williams, Shelby A. Hicks-Merinar

Published: June 16, 2022

The West Virginia Supreme Court of Appeals (WVSCA) issued a new ruling in Fairmont Tool Inc. v. Opyoke, clarifying an employee’s burden of proof to sustain an interference claim under the Family and Medical Leave Act (FMLA) based on a technical violation of the FMLA’s notice requirements. In Opyoke, the employer failed to provide the requisite notice and eligibility paperwork to the employee for months after the employee had requested FMLA leave for cancer treatment. After several months of inaction, the employer finally advised the employee that he was eligible for FMLA leave and provided the employee with the required notices. Immediately after the employee received the requisite FMLA paperwork, he was laid off as part of a reduction in force. The employee sued the employer for wrongful discharge, FMLA retaliation, and FMLA interference, but the circuit court dismissed the wrongful discharge and retaliation claims.

The employer moved for judgment as a matter of law on the employee’s interference claim, arguing that, while the employer did technically violate the FMLA’s notice requirements delaying the paperwork, the employee had not presented evidence that this violation actually caused him any harm. The circuit court denied the motion, and the employer appealed.

On appeal, the WVSCA discussed the elements of an interference claim:

(1) The employee was eligible for the FMLA.

(2) The employer was covered by the FMLA.

(3) The employee was entitled to leave under the FMLA.

(4) The employee provided notice of the intent to take leave.

(5) The employer denied the FMLA benefits to which the employee was entitled.

The WVSCA noted that while interference claims do not require a showing of intent on the employer’s part, the FMLA statute does not provide any relief unless the employee “loses compensation or benefits by reason of the violation.” 29 U.S.C. § 2617(a)(1)(A)(i)(1). In the context of a technical violation of the FMLA notice requirements, the WVSCA relied on federal precedent holding that employees can show prejudice by the notice violation where they provide proof that they would have structured their leave differently had they received the required notices. In this case, the WVSCA held that the employee failed to offer any evidence that he would have structured his leave differently had he timely received the notices. Therefore, the WVSCA reversed the jury verdict in favor of the employee and held that, in addition to the elements above, an employee must prove that he or she was prejudiced by the employer’s violation of the statute.

If you have any questions about the FMLA or other employment-related issues, please contact the authors of this alert or a member of our Labor & Employment Department.

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