By Christopher W. Taylor, Esq.

Under 29 C.F.R. § 825.220(d), an employee “cannot waive, nor may employers induce employees to waive, their rights under FMLA.” In a February 25, 2014 decision, the 9th Circuit Court of Appeal qualified this rule holding an employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeking leave would have invoked FMLA protection, if willingly trading off for another benefit. See, Escriba v. Foster 2 Poultry Farms (9th Cir. 11-17608 and 12-15320 2/25/14).

Maria Escriba was an 18-year-old employee at Foster Farms’ processing plant in Turlock, California. She requested and was granted a two-week leave of absence to care for her sick father in Guatemala. During the leave, Ms. Escriba decided her father needed her help for more than two weeks, and that she would remain in Guatemala for additional time.

Escriba attempted to notify Foster Farms of her need for additional time, but was unable to speak to anyone affiliated with Foster Farms about extending her leave until she spoke to her union representative 16 days after she was scheduled to return to work. The union representative informed Escriba that she would likely be terminated under Foster Farms’ “three day no-show, no-call rule.” Under this
policy, an employee is automatically terminated if he or she is absent for a period of three work days without notifying the
company or without seeking a leave of absence. Foster Farms did terminate Escriba based on this policy, and Escriba subsequently filed suit under the Family and Medical Leave Act (FMLA) and its California equivalent.

The parties dispute the characterization of Escriba’s request for a two-week period of leave. Escriba claims that her termination was an unlawful interference with her rights under the FMLA. Under the FMLA, Foster Farms would be prohibited from counting protected leave days as “absences” under its “no-call, no show” policy, and her termination would be illegal. Foster Farms responded that, although Escriba provided an FMLA-qualifying reason for taking leave, she explicitly declined to have her time off count as FMLA leave because she wished to preserve her protected medical leave for future use and instead use paid vacation time first. Foster Farms’ employee-leave policy required an employee who requested FMLA-protected leave to first exhaust paid vacation time. The initial paid leave would run concurrently with FMLA, counting against both an employee’s balance of vacation time and his or her FMLA-protected leave. By choosing to decline FMLA leave, Foster Farm noted Escriba elected to increase the length of time she could take off of work because she first used vacation days (without concurrently burning FMLA days) and once the vacation days were exhausted she would still have a full 12 weeks of FMLA leave remaining.

Because Escriba willingly chose one benefit over another, the Court of Appeal disagreed with Escriba’s argument she was protected by the FMLA when terminated because by statute she could not waive her right to FMLA.

Should you have questions about your rights to protected medical leave under the Family and Medical Leave Act (FMLA) or its California equivalent, the California Family Rights Act (CFRA), contact attorney Christopher W. Taylor at JML Law.