For Law Students

Join Now

A crash course on FMLA and HR as an alternative career


So, what can you really do with your legal degree? The opportunities are vast and you might consider looking into an alternative career. An alternative career gives you the chance to use your cultivated skills in a myriad of fields like human resources. HR is the management of a company’s most important assets – people. In choosing people to fulfill the mission and vision of the organization, there is much to be done when it comes to recruitment, retention, and retirement – as well as everything in between.

What laws will I come into contact with in HR?

You’ll come into contact with many state and federal laws that govern the workplace so there will never be a dull moment for someone like you with an interest in employment and/or labor law. One of the ways in which HR interacts with the law is when it comes to the Family and Medical Leave Act (“FMLA”) of 1993. There are a number of purposes for the Act including the need to balance the demands of the workplace with the needs of families and to entitle eligible employees to take leave for medical reasons.

According to the U.S. Department of Labor’s Wage and Hour Division Fact Sheet #28, FMLA “entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons.” A “covered employer” is defined within the context of their respective sector. For private-sector employers, they must have “50 or more employees in 20 or more workweeks in the current or preceding calendar year.” Whereas in the public sector every public agency would be covered “regardless of the number of employees it employs.”

An “eligible employee” is one who works for a covered employer and has done so for at least 2 months and has accumulated at least 1250 hours of service during the 12 month period immediately preceding the leave. You should note that there may be variations in hours for airline flight crew members. Covered employees are entitled to up to 12 workweeks of leave in a 12-month period however that can be taken in blocks, intermittently, or on a reduced schedule. This is the basic information however; please see the Fact Sheet for the other areas and topics covered under FMLA.

What types of remedies are available for a FMLA violation?

  • Back pay
  • Front pay
  • Pre-or post-judgment interest
  • Liquidated damages
  • Injunctive relief
  • Nominal damages
  • Attorneys’ fees and costs

For example, in a Seventh Circuit case, Walters v. Mayo Clinic Health Syst. (2014), the court awarded the plaintiff $543,841.20 in back pay as well as injunctive relief in a FMLA interference case.

What types of remedies are not available under FMLA?

  • Emotional distress
  • Punitive damages

How do FMLA claims make it into court?

Here is an example of how the Third Circuit ruled on an alleged FMLA retaliation/interference claim:

Brief version of the facts: Frederick Capps worked at a company that maintained a policy on FMLA as well as an internal policy on dishonesty, dubbed the Dishonest Acts Policy. Capps suffered from a serious health condition that his treating physician certified. Based on this information from his treating physician and with the completion of the required paperwork, Capps was granted intermittent FMLA for a period of 6 months. At some point during the 6 months, Capps pled guilty to a charge of Driving Under the Influence of Alcohol (“DUI”) and served roughly days in jail. Early the following year, an HR Manager and another HR employee became aware of the conviction and researched the docket entries. They noticed that Capps’ arrest and subsequent court dates coincided with the days that he had called out on FMLA leave. Following some discussions with Capps and his union representative, he was ultimately terminated based on his violation of the Dishonest Acts Policy. Capps subsequently filed claims alleging interference with his rights under the FMLA and retaliation of his proper use of FMLA leave.

Standard of Review on the FMLA Retaliation Claim

Since “FMLA retaliation claims require proof of the employer’s retaliatory intent, courts have assessed these claims through the lens of employment discrimination law.” Lichtenstein, 691 F.3d at 302 . Accordingly, a claim such as Capps’ FMLA retaliation claim is assessed under the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 , 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). See Ross, 755 F.3d at 193 (citing Lichtenstein, 691 F.3d at 302 ). Under the McDonnell Douglas framework, a plaintiff must first establish a prima facie case of discrimination. If the plaintiff succeeds, the defendant must articulate a legitimate, non-discriminatory reason for the adverse employment action. The burden then shifts back to the plaintiff to prove, by a preponderance of the evidence, that the articulated reason was a mere pretext for discrimination. Ross, 755 F.3d at 193.

Standard of Review on the FMLA Interference Claim

To make a claim of interference under the FMLA, a plaintiff must establish:

(1) he or she was an eligible employee under the FMLA; (2) the defendant was an employer subject to the FMLA’s requirements; (3) the plaintiff was entitled to FMLA leave; (4) the plaintiff gave notice to the defendant of his or her intention to take FMLA leave; and (5) the plaintiff was denied benefits to which he or she was entitled under the FMLA.

Holding: Employee cannot establish that employer had retaliatory intent in violation of FMLA when it discharged him based on honest belief that he misused his FMLA leave to attend proceedings related to his arrest. Third Circuit finds that evidence that employer’s previous approval of employee’s intermittent FMLA leave and reinstatement of employee each time he returned from leave until it discovered evidence that it believed showed that employee had taken leave on same dates as court appearances supports employer’s legitimate, nondiscriminatory explanation for its discharge of employee based on honest belief that he misused leave, regardless of whether employer’s belief was mistaken. Court also finds that employer did not interfere with employee’s FMLA rights because he was unable to show that employer withheld any benefits (Capps v. Mondelez Glob., LLC, 2017 BL 26020, 3d Cir., 15-3839, 1/30/17).

What now?

If you are interested in employment and labor law here are some suggestions to stay current (the list is in no way exhaustive):

  • Join organizations like the ABA’s Tort Trial & Insurance Practice Section (“TIPS”) Employment and Labor Law Committee to learn about the diverse viewpoints when handling employment and labor law claims. You can join up to five ABA specialty groups for free as a law student.
  • Subscribe and/or visit the Bloomberg BNA Labor & Employment Law Resource Center website for the latest updates in employment and labor law. You will also find practice tools as well as manuals
  • Look for internship opportunities in the human resources field. There are many private and public sector opportunities available.

Supplement your JD with a certificate or masters in Human Resources.

Candice Isaac Candice Isaac is a rising 3L at the West Virginia University College of Law and currently serves as Law Student Vice Chair to the Employment and Labor Law Committee of the Tort, Trial, and Insurance Practice Section (TIPS) of the American Bar Association.