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Employers: Don't Forget to Designate Employees' Time Off

Wage and Hour DefenseEmployee Leave of Absence Claim Defense

No Harm No "Fowl" in FMLA Case - 9th Circuit

by Sue M. Bendavid



Score one for the employers in this case, but do so with caution:

Foster Farms did not violate California and federal law when the company fired an employee for returning to work more than two weeks after her vacation ended, according to the Ninth Circuit Court of Appeals.

Lawyers for Employers - FMLA ClaimsThe employee, Maria Escriba, requested two weeks' vacation to tend to her ill father in Guatemala. Her supervisor asked Escriba twice if she needed to apply for leave under the Family and Medical Leave Act (FMLA), which Escriba declined. She then asked for additional vacation time, but that request was denied.

When her vacation ended, Escriba did not contact Foster Farms to request time under FMLA. Foster Farms fired her because of their "three day no-show, no call" policy. Escriba claimed her FMLA rights should have automatically gone into effect to cover the additional two weeks because her employer knew she was attending to a sick parent.

The Ninth Circuit disagreed with Escriba, saying: 

An employer’s obligation to ascertain “whether FMLA leave is being sought” strongly suggests that there are circumstances in which an employee might seek time off but intend not to exercise his or her rights under the FMLA…We thus conclude that an employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeking the leave would have invoked FMLA protection.

A notable fact in this case was that Escriba had obtained FMLA leave 15 times in her 18 year work history at Foster Farms, indicating a familiarity with the request process. Escriba’s supervisor knew she needed time off to care for an ill family member, and thus asked Escriba twice, with the help of a Spanish language interpreter, whether Escriba wanted to take FMLA leave. 

That worked in Foster Farms' favor, as the evidence demonstrated the supervisor took reasonable steps to protect the employee's FMLA rights, and the interpreter later served as a witness who could attest that proper steps were taken.


Employer's Responsibility to Communicate and Designate


Though the decision went in favor of Foster Farms, this case provides some important reminders for employers: 

  • Communication – a key factor in preventing employee claims. First, supervisors should be fully aware of employee rights regarding the California Family Rights Act and the federal FMLA rules. Secondly, it's the employer's responsibility to determine the nature of a leave.

  • Documentation – equally important. Be sure to document the employee's decision when they choose whether or not to take a leave of absence.

  • Designation – When an employee elects FMLA/CFRA leave, make sure you specifically designate the time off as FMLA/CFRA. 


Sue M. Bendavid is an Employer Defense Attorney, and Chair of our Employment Practice Group. Contact her via email:

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