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Employers’ “Honest Belief” Defense Has No Place in the FMLA

By Erika Jacobsen White

On March 21, 2024 the National Institute for Workers’ Rights, the National Employment Lawyers’ Association, and A Better Balance argued before the 4th Circuit in the case of Shipton v. Baltimore Gas & Electric, et al. against the adoption of the “honest belief” defense to cases brought by employees to exercise the benefits afforded to them under the Family Medical Leave Act (“FMLA”).

The United States is unique among advanced economies in its failure to mandate any kind of guaranteed paid medical or family leave for workers. Instead, workers in the U.S.—if they have worked full time for a year at a workplace with over 50 employees—are entitled to take up to twelve unpaid weeks of leave a year under the FMLA, and know that their job is protected.[1] Just over half of U.S. workers qualify for FMLA leave, but the law’s benefits are not evenly distributed. Low-wage workers are less likely to be eligible for leave, more likely to fear job loss if they take leave, and more likely to be fired for taking leave than their high income counterparts.[2] Two-thirds of low-wage, FMLA-eligible workers who forgo necessary medical leave cite concerns about job loss as a motivating factor in the decision.[3]

Congress enacted the FMLA in 1993 with the goal:

“to balance the demands of the workplace with the needs of families, to promote the stability and economic security of families…to promote national interests in preserving family integrity,” to “promote the goal of equal employment opportune[ities]” recognizing that “due to the nature of the roles of men and women in our society, the primary responsibility for family caretaking often falls on women, and such responsibility affects the working lives of women more than it affects the working lives of men; and “to entitle employees to take reasonable leave for medical reasons, for the birth or adoption of a child, and for the care of a child, spouse, or parent who has a serious health condition.”[4]

The FMLA provides covered employees with “12 workweeks of leave during any 12-month period” for family-related reasons or for an employee’s serious health condition that renders him unable to do his job.[5] Such leave may be taken intermittently.[6]

Employees can enforce their rights in two ways.  First, the FMLA allows employees to recover for the damages that they suffer any time an employer interferes with their ability to exercise their benefits under the FMLA.[7] These are generally known as interference claims. Secondly, FMLA provides protections for employees from suffering from discrimination or retaliation for exercising their benefits under the FMLA.[8]

The plain language of the FMLA makes clear that under any scenario, the employers’ “good faith” belief that they were not interfering with an employee’s benefits, or discriminating against them because they thought they were legitimately engaging in an adverse employment action against the employee for some other reason, will only lead to a reduction in liquidated damages for the employer if they can  “prove[s] to the satisfaction of the court that the act or omission…was in good faith and that the employer had reasonable grounds for believing that the act or omission was not a violation.”[9]

This language exists because the FMLA is unlike other anti-discrimination statutes in that the FMLA grants employees tangible employment benefits. Congress modeled the enforcement mechanisms of the FMLA on the Fair Labor Standards Act, providing minimum labor standards for employees, just like the minimum wage or overtime.[10] Indeed, the original Senate versions of the bill (in 1986 and 1987) did not include any reference to an employer’s “good faith” as a defense at all, however, the final version of the bill, added the provision which ultimately became 2617(a)(1)(A)(iii). When Congress added this “good faith” defense to liquidated damages, the legislative history shows that it looked to the FLSA as a model for its enforcement mechanisms.[11] However, Congress chose to incorporate into the FMLA only one of the two “good faith” defenses available under the FLSA – and that is the good faith defense to liquidated damages, which mirrors the language of the FLSA[12] almost identically.[13] Congress could have enacted a provision mirroring the FLSA sections that provide a complete defense to liability,[14] but they simply did not do so. Where Congress decided to leave out a complete defense to liability based on the employer’s “good faith” or “honest belief,” courts should not rewrite the statute to include words that are not there.  Only a minority of Circuits have done so, and amici have urged the 4th Circuit not to put itself into that minority.

While employees are entitled to the benefits granted by the FMLA, that entitlement is not absolute.  For example, if the employer would have terminated the employee while they are on leave for some reason unrelated to their exercise of FMLA benefits, such as poor performance, a reduction in force, or job elimination, the FMLA provides that the employee would have no greater right to reinstatement than any other employee.[15] However, the plain language of the statute and accompanying regulations places the burden squarely on the employer to prove that an employee does not have a right to reinstatement,[16] and courts should not shift that burden back onto the employee.

Similarly, Congress established a mechanism for ensuring that employees take leave for legitimate reasons: giving employers the opportunity to request a medical certification from employees.[17] There are specific statutory provisions governing the “sufficiency” of the certification.[18] Moreover, if an employer doubts the validity of an employee’s medical certification, Congress also provided a mechanism in the FMLA—often referred to as the “anti-abuse” provision—for employers to get a second opinion.[19] When employers choose to require medical certification or challenge a medical certification, Congress provided employees with an entitlement to this neutral process to allow employers to challenge the sufficiency of that certification.[20] Congress did this to ensure that employers would not simply state, “I don’t believe you are sick.” To this end, the regulations also makes clear that interference with an employee’s FMLA rights includes “manipulation by a covered employer to avoid responsibilities under the FMLA,” and prohibits employers from using “the taking of FMLA leave as a negative factor in employment actions[.]”[21] 

Fundamentally, an employee’s entitlement to a benefit under the FMLA does not change simply because the employer “honestly believed” that they were not – just like an employee is still owed overtime even if the employer “honestly believed” that they were not. This is the reason that an employee is required to demonstrate that they were prejudiced by interference with their FMLA rights. If the employee is not prejudiced by the interference, then the employer can effectively say “no harm no foul.”

Ultimately, neither the regulations, nor the statute itself provide for a scenario where the employer can deny an employee the benefits afforded them under the FMLA simply because they “honestly believed” that they were not entitled to them. Courts should not judicially engraft a new defense that Congress chose to omit. To do so runs against the goal of balancing the demands of the workplace with the needs of families, the promotion of stability and economic security of families, and to give employees right to take reasonable unpaid leave for medical reasons the birth or adoption of a child, or for legitimate caretaking duties. The FMLA provides a truly minimum labor standard – like the minimum wage or child labor laws, and the implementation of an “honest belief” defense would strip these minimum standards bare.

[1] 29 C.F.R. § 825.110; 29 U.S.C. § 2611(2), (4).

[2] Scott Brown, Radha Roy, & Jacob Alex Klerman, Leave Experiences of Low-Wage Workers, Dept. of Lab. (Nov. 2020).

[3] Id. at 6.

[4] 29 U.S.C. § 2601.

[5] 29 U.S.C. § 2612(a)(1).

[6] 29 U.S.C. §  2612(b).

[7] 29 U.S.C. § 2615(a)(l); “[T]he substantive rights guaranteed by the FMLA are prescriptive, and a plaintiff seeking redress for employer interference with an entitlement is only required to show that he or she qualified for the right that was denied.” Sharif v. United Airlines, Inc., 841 F.3d 199, 203 (4th Cir. 2016) (citing Yashenko v. Harrah’s NC Casino Co., LLC, 446 F.3d 541, 546 (4th Cir. 2006)).

[8] 29 U.S.C. § 2615(a)(2); This limitation on employers is proscriptive. Yashenko, 446 F.3d at 546.

[9] 29 U.S.C. § 2617(a)(1)(A)(iii).

[10] Both the FLSA and FMLA provide that a violation entitles the employee to the values of the lost benefit provided by the statute, equitable relief, and liquidated damages.  Compare 29 USC §216 with 29 USC 2617 (a)(1).

[11] Indeed, both the FLSA and FMLA provide that a violation entitles the employee to the values of the lost benefit provided by the statute, equitable relief, and liquidated damages.  Compare 29 USC §216 with 29 USC 2617 (a)(1); see also House Report (Education and Labor Committee) No. 103-8(I), Feb. 2, 1993 (To accompany H.R.1) FAMLV-LH 4-A, 1993 WL 13148778 (A.&P.L.H.), 49; Senate Report from the Committee on Labor and Human Resources accompanying S. 5 from Jan. 27, 1993 – FAMLV-LH 4-A, 1993 WL 13148778 (A.&P.L.H.), 49; see also FAMLV-LH 5, 1993 WL 13148780 (A.&P.L.H.), 34

[12] See 29 U.S.C § 260.


Compare 29 USC § 260: “[I]f the employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation of the Fair Labor Standards Act of 1938, the court may, in its sound discretion, award no liquidated damages or award any amount thereof not to exceed the amount specified in §216.”With 29 U.S.C. § 2617(a)(1)(A)(iii):“[E]xcept that if an employer who has violated [§ 2615] proves to the satisfaction of the court that the act or omission which violated [§ 2615] was in good faith and that the employer had reasonable grounds for believing that the act or omission was not a violation…such court may in the discretion of the court, reduce the amount of the liability to the amount and interest determined under clauses (i) and (ii).”

[14] See, e.g., 29 U.S.C. §§ 258-259.

[15] See 29 U.S.C. § 2614; 29 C.F.R. § 825.216.

[16] 29 C.F.R. § 825.216(a) (“An employer must be able to show that an employee would not have been employed at the time reinstatement is requested in order to deny restoration to employment.”).

[17] See 29 U.S.C. § 2613.

[18] See 29 U.S.C. § 2613; 2614(c)(3).

[19] See 29 U.S.C. § 2613(c); 29 C.F.R. 825.307.

[20] Id.

[21] 29 C.F.R. § 825.220(c)

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