Andrea Olson contracted to work with the Bonneville Power Administration (BPA) as a Reasonable Accommodation Coordinator in 2010. In this role, Olson assisted employees in need of accessibility accommodations at work, trained managers and employees on their rights and responsibilities, and maintained records and documentation. In late 2011, BPA declined to renew Olson’s contract for another year. Instead, BPA required Olson to work through MBO Partners, a payroll service provider that had a master services agreement with BPA to facilitate certain independent contractors.
In 2013, Olson began experiencing anxiety, and in March 2014, Olson made a formal accommodation request through MBO Partners. Among other things, Olson requested to telework. MBO Partners subsequently informed BPA’s Director of Human Resources of Olson’s request. Shortly thereafter, Olson’s anxiety increased, and she informed BPA she would be out of the office for two weeks. Olson then formally invoked leave under the Family and Medical Leave Act (FMLA) through MBO Partners, and she requested that MBO Partners inform her before sharing information about her condition or leave with BPA. Olson informed BPA that she would be out of the office for two more weeks and that she hoped to start a transition plan soon.
While on leave, Olson performed limited teleworking for which she billed BPA. However, because BPA did not have an expected date for Olson’s return, it began exploring whether an existing employee could take on Olson’s responsibility. After Olson contacted BPA’s Equal Employment Opportunity office to discuss filing a complaint, BPA sent Olson an email stating that her network access had been terminated in accordance with security policies. Despite the termination of her network access, Olson still billed BPA for three hours of her time the next month.
In early May 2014, Olson told BPA that she intended to attempt a trial work period that she and her physician had agreed upon. BPA responded that she was under a “stop work” order and that she would have to meet with a BPA manager before returning to work. On May 27, 2014, Olson formally filed an EEO complaint alleging that BPA had violated her FMLA rights. While BPA agreed to allow Olson to telework more on June 11, 2014, she did not accept the offer and did not return to work. Nearly three years later, on March 13, 2017, Olson filed a lawsuit claiming that BPA willfully interfered with her rights under the FMLA.
The district court concluded that BPA never provided Olson with notice of her FMLA rights. However, it also found that Olson’s lawsuit was untimely because BPA’s conduct was not willful. Specifically, the court noted that that BPA consulted with its legal department about how to proceed during Olson’s FMLA leave, opted not to terminate her, offered her a trial work period, and made efforts to restore her to an equivalent position. Olson appealed.
In general, the FMLA provides job security to employees who must be absent from work because of their own illness or to care for family members who are ill. FMLA interference can take many forms, such as using FMLA leave as a negative factor in hiring, promotions, and disciplinary actions. Employers also have a duty to inform employees of their entitlements under the FMLA. However, failure to provide notice alone is not a cause of action; rather, employees must prove that the employer interfered with their exercise of FMLA rights.
On appeal, Olson argued that BPA’s lack of notice interfered with her FMLA rights because she would have structured her FMLA leave differently had she been given notice and because BPA’s actions during her FMLA leave exacerbated her FMLA-qualifying condition of anxiety.
The Ninth Circuit panel, however, determined that it did not need to decide whether BPA’s failure to give notice constituted inference. Under the FMLA, a lawsuit must generally be brought within two years “after the date of the last event constituting the alleged violation”. This deadline is extended to three years for “willful” violations. The court reasoned that because the “last event constituting the alleged violation” occurred no later than June 11, 2014 (when BPA emailed Olson allowing her to telework more), she would have to show that BPA’s conduct was willful to avoid the statutory time bar for her March 2017 lawsuit.
The Ninth Circuit concluded that the district court was correct in finding Olson could not prove willfulness. For a willful violation to occur, the employee must show the employer knew or showed reckless disregard for whether its conduct was prohibited by statute. The court noted that the district court applied this standard and found little evidence that BPA knew or showed reckless disregard for whether it was violating Olson’s FMLA rights. Accordingly, the Ninth Circuit concluded that Olson’s claim was indeed barred by the statute of limitations.
Olson v. United States by & through Dep’t of Energy, 2020 WL 6864653 (9th Cir. Nov. 23, 2020).
Note:
The willfulness standard applied in FMLA cases is the same standard used for the Fair Labor Standards Act. The willfulness standard is very difficult to meet.