Employee Not Insulated from Discipline by Completing FMLA Paperwork

January 26, 2023

The United States Court of Appeals for the 8th Circuit ruled on December 13, 2022, that an employee on thin ice with an employer does not insulate themselves from discipline by completing Family Medical Leave Act (“FMLA”) paperwork.


An employee at Drake University for 16 years was diagnosed with multiple sclerosis (MS) during her tenure.  Despite this diagnosis, she was seemingly able to work with the dean(s) over many years without needing to file formal FMLA paperwork. However, this all changed in July 2018 when a new dean was hired.


Animosity seemed to fester as a result of the employee’s erratic work schedule. The dean was not informed of some of the employee’s absences, and continually spoke with the employee about performance and work issues. As a result, the employee was then given a performance improvement plan (PIP). This PIP laid out requirements for notice of any absences. Performance issues and any absences were documented, with FMLA time being documented separately.


The employee’s absences and performance did not seem to improve, and as a result, the employee was terminated.


The employee then filed a lawsuit against Drake University, claiming that the Family and Medical Leave Act (FMLA) and Americans with Disabilities Act (ADA) were violated.


The Court disagreed, and found that the employee had failed to provide substantial evidence to support that the termination was retaliatory or discriminatory under FMLA or ADA.


The Court held that an employee who exercises her rights under the FMLA “has no greater protection against termination for reasons unrelated to the FMLA than she did before doing so.” … “Otherwise, a problem employee on thin ice with the employer could effectively insulate herself from discipline by engaging in protected activity.”


If your business has any questions on this topic or any other matters, please do not hesitate to contact the attorneys at The Royal Law Firm at 413-586-2288.

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July 14, 2025
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Remote Workers and the WARN Act

July 9, 2025
Background: The e-commerce website Zulily liquidated in May 2023 and laid off its entire workforce by the end of 2023. While in-person workers at Zulily’s Seattle headquarters and fulfillment centers in Ohio and Nevada received 60 days’ notice or pay under the Worker Adjustment and Retraining Notification (WARN) Act, remote employees were not given any notice or pay. Four remote workers—two based in Washington and two based in Ohio—filed a class action lawsuit claiming that this was a violation of the WARN Act and state wage laws. The workers argued that because their roles were assigned to corporate offices or fulfillment centers, they should have been considered “affected employees” under the WARN Act when those sites closed. In a decision that could signal a significant shift in how the WARN Act applies to remote workers, the federal judge refused to dismiss the workers’ claims.  Key Legal Questions 1. Do Remote Workers Qualify for WARN Act Protections? The core of the dispute centers on whether remote workers can be considered part of a “single site of employment” that closed or experienced a mass layoff—terms that define whether the WARN Act’s notice requirements kick in. 2. Are WARN Act Damages Considered “Wages”? The Plaintiffs also brought state wage claims, arguing that the pay they would have received with proper WARN Act notice should be considered unpaid “wages” under Washington law and Ohio law. What the Court Decided: Judge Kymberly K. Evanson rejected the company’s motion to dismiss the case. Finding that Zulily’s argument that remote employees do not work at a single site with 50 or more workers and thus aren’t covered, was a factual question not suitable for early dismissal. Prior cases support the idea that even home-based employees may be “affected employees” if tied to a central worksite that shuts down. The court also found that if the WARN Act applies, then the Plaintiffs could plausibly claim that Zulily withheld “wages” owed under Washington and Ohio laws —opening the door to potential double damages and attorney fees. The Plaintiffs haven’t won their case; the court’s refusal to dismiss the claims allows them to move forward to discovery and potentially class certification. If they succeed, the case could set a precedent requiring companies to treat remote employees as part of larger employment sites for WARN Act purposes. With remote work here to stay, courts—and employers—will need to grapple with what "site of employment" really means in the 21st-century workforce. For employers, the message is clear: remote doesn't mean exempt. As the legal framework catches up with modern work arrangements, companies must tread carefully when making large-scale employment decisions. If your business has any questions on this topic or any other matters, please do not hesitate to contact the attorneys at The Royal Law Firm at 413-586-2288.