The FMLA from the Plaintiff’s Chair: Strategy, Proof, and Pitfalls in Employee Leave Litigation

Course Description

This two-hour CLE program examines the Family and Medical Leave Act through the lens of the employee’s advocate. Rather than a general survey of FMLA compliance, the session focuses on the practical realities plaintiffs’ counsel face: how to spot viable interference and retaliation claims at intake, how to build the factual record when employers control most of the evidence, and how to counter the defenses employers most commonly raise.

Topics include eligibility and coverage traps that can gut a claim early, the distinction between interference and retaliation theories (and why that distinction matters for jury instructions and burden-shifting), the McDonnell Douglas framework as applied in FMLA retaliation cases, honest-belief and mixed-motive defenses, damages and the availability of liquidated damages and front pay, and interplay with the ADA, workers’ compensation, and state leave statutes. The program will also address common employer counterclaims and defensive maneuvers plaintiffs’ counsel should anticipate, along with practical case-evaluation and discovery strategies tailored to leave-related claims.

This program blends statutory and case law analysis with practice-ready strategy for evaluating, developing, and trying FMLA claims.

Principles

• Spot Viable FMLA Claims Early
  • Effective plaintiff-side representation begins at intake by identifying coverage, eligibility, qualifying leave, employer knowledge, and potential adverse actions.
  • Counsel should recognize threshold defects that can eliminate a claim before substantial resources are invested.
• Distinguish Interference From Retaliation
  • Interference and retaliation are distinct theories requiring different proof and litigation strategies.
  • Counsel should understand how the distinction affects elements, burdens of proof, jury instructions, and the defenses available to employers.
• Build the Factual Record Strategically
  • Employers often control critical evidence concerning leave administration, attendance records, performance documentation, decision-making, and communications.
  • Plaintiff’s counsel should use targeted discovery to establish chronology, employer knowledge, inconsistent explanations, comparator evidence, and potential pretext.
• Anticipate and Defeat Employer Defenses
  • Common defenses—including honest-belief, mixed-motive, performance-based explanations, and eligibility/coverage challenges—should be anticipated from the outset.
  • Counsel should develop the case record with those defenses in mind rather than waiting to respond to them at summary judgment or trial.
• Maximize Remedies and Leverage Overlapping Claims
  • Counsel should evaluate available damages and remedies, including liquidated damages and front pay, while considering related claims under the ADA, workers’ compensation laws, and state leave statutes.
  • A comprehensive case strategy should also anticipate employer counterclaims and other defensive maneuvers.

Syllabus

1. Introduction and Framing
   • Why FMLA cases are different from other employment claims
   • The plaintiff’s eye view: what makes a case worth taking
2. Coverage and Eligibility — Where Cases Die Early
3. Interference Claims
4. Retaliation Claims
5. Damages and Remedies
6. Intersecting Claims and Strategic Considerations
7. Practice Pointers — Building the Case File