Good Faith = No Willful Violation

Michael Newman
June 4, 2008 — 2,337 views  
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As I'm sure anyone reading this article is well-aware, the FMLA requires that employers provide eligible employees with up to twelve weeks of unpaid leave per year to deal with serious health conditions of their own or those of close family members.  Procedures for requesting and granting such leave are set forth in the statute, and an employee may file a lawsuit if his employer improperly refuses to provide leave mandated by the FMLA.  The Act also includes a two-year statute of limitations for most violations, with a three-year window available only for violations which are "willful."  However, the FMLA does not explain what constitutes a "willful" violation, and that is the focal point of Bass v. Potter, supra.


Bass was an employee of the United States Postal Service for nearly ten years, during which time he had a recurring history of failing to abide by USPS' attendance and leave policies.  In fact, at the time relevant for this case, Bass was working under a "Last Chance Agreement" as a result of repeated absenteeism.  On March 6, 2002, Bass requested FMLA leave because of chronic back pain, and submitted medical certification regarding his serious health condition.  Bass was subsequently informed by his employer that his certification was incomplete, as it lacked necessary information regarding the frequency and duration of his condition.  Bass then timely submitted a second medical certification which was similarly deficient.  At that point, Bass was given a final deadline by which he was required to submit his completed certification.  However, Bass was unable to schedule an appointment with his health care provider prior to that deadline, and thus did not submit sufficient certification until it was nearly a week overdue.  Accordingly, the USPS declined to treat Bass' absences as FMLA leave, he was subsequently terminated for violating the USPS' attendance policy and his "Last Chance Agreement," and he eventually filed the instant lawsuit. 


Bass, however, did not file his lawsuit until more than two years had passed since his former employer's alleged FMLA violation, so in order for him to proceed, he bore the burden of showing that the USPS had "willfully" violated the FMLA.  In deciding against Bass and holding that there was not "willful" violation, the 10th Circuit held that, in order to show "willfulness," a plaintiff must show that "the employer knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute."  While avoiding the question of whether or not the USPS' actions even violated the FMLA in the first place, the court held that there certainly was no "willful" violation, given the evidence that USPS "endeavored to comply with FMLA's medical certification process."

In other words, given that the employer made a concerted effort to comply with the strictures of the FMLA, the court was not willing to conclude that any "willful" violation could exist.  While it is unlikely that the particular situation of Bass v. Potter (a statute of limitations issue) will present itself on a regular basis, it should comfort employers to know that courts do credit employers who seek the advice of outside counsel or take other proactive, good-faith steps to ensure that their conduct complies with federal legislation.

Michael Newman

Michael Newman is a Partner in the Cincinnati office of Dinsmore & Shohl LLP, where he chairs the firm's Labor & Employment Appellate Practice Group. He represents a broad range of business clients, both large and small, in the state and federal courts.