Imagine having to choose between your paycheck and taking care of your sick child. If instead of an unpaid leave under the Family & Medical Leave Act (FMLA) your employer offered an alternative pay plan where you work part-time from home while still getting your full pay, would you think twice?

According to a recent decision from a North Carolina federal court, maybe you should.

The FMLA allows employees to take up to 12 weeks of unpaid leave to address medical and family situations, including caring for a sick child or immediate family member. Employees can’t be fired because of their need for time off, and when they return, they must be given the same job or an equivalent position with the same pay and benefits.

The Alternative Pay Plan

In the North Carolina case, reported on, the plaintiff worked as a project manager at a sprinkler installation company. When her son was diagnosed with cancer in August 2012, she asked her employers about taking time off under the FMLA. The company argued that it encouraged her to take unpaid FMLA leave, but she told her managers that she couldn’t afford to lose her salary. She stated that her employers told her there was no reason to fill out the FMLA form, and that they would come up with a plan “outside of the FMLA to work for everybody.”

Consequently, the plaintiff began working from home, and for six months she put in five to 25 hours per week. She had previously been terminated from the company for insubordination and failure to communicate, and though she had been rehired, the company alleged that these problems resurfaced and got worse, even though she made herself available by both phone and email while working remotely. In January 2013, the company fired her again. She then filed suit against her employer, alleging FMLA interference, sex discrimination, and wrongful discharge under state law.

Did The Employer Interfere with the Employee’s FMLA Protections?

The company sought to dismiss the lawsuit, arguing that there was no way the plaintiff could win if the case went to trial. The court had to determine whether the alternative pay plan illegally interfered with her FMLA rights, and concluded that two issues should be left for a jury to decide:

  • Employer Interference: Did the company discourage the employee from asserting her FMLA rights by offering the alternative pay plan instead?
  • Prejudice or Harm: Did the employee lose her job because of the alternative pay plan, or because of her habit of insubordination and lack of communication?

 The case is scheduled to proceed to trial, where a jury will be asked to answer these questions.

Employees in various areas and industries can learn from this case. If you have requested FLMA leave and suspect that your employer may not be complying with state and federal statutes, please contact the attorneys in Sommers Schwartz’s Employment Litigation Group immediately before agreeing to alternative pay plan or anything less that what the law requires.


Tad T. Roumayah

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Tad T. Roumayah

Tad Roumayah focuses his practice primarily on employment litigation, representing employees who have encountered discrimination, retaliation, wrongful discharge, whistleblower protection claims, wage and hour violations and other employment issues and disputes.