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What Does a Baseball Road Trip Teach Us About Bugging an Employee While They Take FMLA Leave?


Yeah, I get it. He’s taller than me. Significantly taller.

Ever since my son, Luke, was a wee lad, we dreamed of going on a major league baseball road trip together.

Baseball runs through our veins, so after years of dreaming, 2022 was our year.  Since the beginning of this year, we’ve been plotting, planning and scheduling the trip of a lifetime.

Just a few weeks ago, Luke and I made our way from Chicago to the east coast to catch major league baseball games at six different stadiums – Pittsburgh, Baltimore, Philadelphia, Boston, New York (Mets and Yankees).  Then, we finished with a visit at the Baseball Hall of Fame in Cooperstown, NY.  In between, we walked the Freedom Trail, visited the 9-11 Memorial and Museum, and took a swing past the Statue of Liberty.

As you might imagine, this nine-day jaunt was indeed a trip of a lifetime, some of the best quality time ever with my boy.

Luke chronicled our trip on his You Tube page with daily posts about each park, so please click through and check it out here.

How would we rank the stadiums on our list? We’re not in complete agreement, but I’d put the order generally like this (click through to hear Luke’s take on each park):

1a. PNC Park (a beauty of a park, can’t beat that gorgeous skyline towering above the Clemente Bridge)

1b. Fenway Park

3.  Camden Yards*

4.  Citi Field (where we saw Max Scherzer fan Aaron Judge three times!)

5.  Citizens Bank Park

6. Yankee Stadium (where we saw an Aaron Judge walk-off HR in the bottom of the 9th!)

*  Luke would put Citi ahead of Camden, but I am not going to quibble, as Citi was far better than I had anticipated.

This is Sweet and All, Jeff, But What Does this Baseball Road Trip Have to do with the FMLA?

Glad you asked.

As you well know, all roads in life lead back to the FMLA . . . and baseball.  So naturally, I had time to reflect during our travels about what an MLB baseball road trip might teach us about the FMLA.

One of the small delights of the trip is that I truly was able to break away from work during the trip.  Colleagues and clients were fabulous: those who received my out-of-office message made clear they didn’t want to hear from me until my return, and my colleagues graciously hit the pause button on the FMLA and ADA questions while I was away.  So very grateful for the time away.

It got me thinking: Does an employee have the right to be left alone during FMLA?

I am reminded of Joan Smith.

You remember Joan, right?

Joan was a manager in the Ethics Department at an energy company, and she requested FMLA leave for surgery to remove a cyst from her neck. As Joan reported, her supervisor then became really nasty, and during Joan’s FMLA leave, required her to perform much of her regular work.

During the two-month leave, Joan claimed that the Company required her to perform 20 to 40 hours of work “updating compliance cases, revising a safety review project and dropping off files at the office.” Based on my rough math, that’s anywhere from 3 to 5 hours worked each week during her FMLA leave.

She quit her job and later sued, claiming that the 20-40 hours she was required to work interfered with her FMLA leave, which she claimed entitled her to a slew of damages.

The court thought this was a ton of work, too, and the judge answered it this way, as most courts have done:

…reasonable contact limited to inquiries about the location of files or passing along institutional or status knowledge will not interfere with an employee’s [FMLA] rights; however, asking or requiring an employee to perform work while on leave can constitute interference.

Put another way, there is no right under the FMLA “to be left alone” or be allowed to skirt the employer’s “discrete inquiries.” But if looks like work, it’s gunna be work, and an employee shouldn’t be doing substantive work while on FMLA leave.

The Collection of Recent Cases

As you might imagine, there is a growing body of FMLA cases dealing with situations where the employee allegedly performed work while on FMLA leave.  Here are a few to keep in mind:

  • Reilly v. Revlon and Kesler v. Barris et al: fielding occasional calls about one’s job is a “professional courtesy” that does not interfere with FMLA rights (FMLA claims dismissed)
  • Persson v. Bos. Univ.: no FMLA interference where the plaintiff’s coworker reached out to her to locate a work-related e-mail during her FMLA leave, and all calls stopped after the employee asked that she not receive any more calls [yikes, sounds like a really fun employee…] (FMLA claims dismissed)
  • Spivey v. Elixir Door & Metals Co.: This one is a first. Plaintiff’s supervisor visited him in the hospital, at which time he claimed he was getting pressure from company management to meet deadlines and stated that Plaintiff’s return to work early would be considered when discussing bonuses. Spivey returned to the office to assist with end of the month deadlines and then resumed taking FMLA leave shortly thereafter. The court found that the several requests to work and the threat regarding a bonus could be viewed as coercion not to take leave. (FMLA claims go to trial)
  • Arban v. West Publishing Corp.: checking in with plaintiff on sales leads he was expected to generate during leave also evidence of interference (plaintiff prevailed at trial)
  • King v. McIntosh: Plaintiff was an attorney, and her boss required her to draft exit memos for all her pending cases while she was on leave to care for her sick father, and then complained about her leave of absence. (FMLA claims go to trial)

So, back to Joan. In light of the work Joan apparently had to perform while on leave, the court determined that Joan had presented enough evidence of FMLA interference that a jury would need to decide whether her employer violated the FMLA.

Insights for Employers

One of the highlights of the trip was spending time at the Yankees game with my friend and one of my favorite employment law bloggers, Dan Schwartz, despite his extremely poor taste in hats.

As we see above, there is no bright line rule about contact between employee and employer during FMLA leave, but you can start to see where the courts tend to line up on this issue.  As a general rule, an employee on leave should be fully relieved of their work and not asked to perform work while on leave.  That said, as also evidenced by the cases highlighted above, it is unlikely to be an FMLA violation when an employer makes sporadic calls to an employee posing general questions or to pass along institutional knowledge. Similarly, the employer can contact the employee to check on return dates or possible extension of leave.

And of course, it’s also acceptable to contact the employee to negotiate terms or conditions of employment to help the employee transition back to work. As long as the contact is necessary or related to preserving the employee’s position or coordinating a return, the contact arguably is justifiable.

But you can see where to draw the line here, right?   As you make out the patterns from the cases above:

  • Answering occasional and discreet emails or calls to pass along institutional knowledge = GOOD
  • Writing memos, generating sales leads, being guilted into putting in a little work = BAD

I leave you with two rules to live by:

  • Rule #1: When employees are on FMLA leave, leave ’em the heck alone!  Just like you did on my baseball road trip.
  • Rule #2: When you have the chance to spend quality time with your kid, you do it every time.  Every. Single. Time.



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