accepting the plaintiff’s argument that if an “employee is awarded back pay, accompanied by equitable remedies (i.e. full back pay with seniority and benefits, or a ‘make whole’ remedy), the hours the employee would have worked if not for the action which resulted in the back pay period, [should be] counted as work hours for the 1250 work hour eligibility requirement under the Family Medical Leave Act (FMLA).”
How later courts described this case
- accepting the plaintiff’s argument that if an “employee is awarded back pay, accompanied by equitable remedies (i.e. full back pay with seniority and benefits, or a ‘make whole’ remedy), the hours the employee would have worked if not for the action which resulted in the back pay period, [should be] counted as work hours for the 1250 work hour eligibility requirement under the Family Medical Leave Act (FMLA).”
- Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. §§ 4311 et seq.
- “An employer commits a willful violation of the FMLA when it acts with knowledge that its conduct is prohibited by the FMLA or with reckless disregard of the FMLA’s requirements; therefore, the determination of willfulness involves a factual question.”
- “The determination of whether an employee meets the FMLA’s eligibility requirements is made in reference to the date the employee commences his or her leave, not the day the employer takes an adverse action against the employee.”
Written by the judges who cited it.
The opinion
MERRITT, Circuit Judge,
concurring.
The defendant-employer in this case discharged plaintiff wrongfully, preventing her continued work, according to a now-final, arbitration award, and thereby prevented her from qualifying for benefits under the Family Medical Leave Act. I concur in the Court’s opinion and simply add the idea that a contrary decision would contravene fundamental general principles of restitution and equitable remedies of long standing by allowing the employer to profit from its own infringement of the plaintiffs right to the statutory benefits derived from her own labor.
The remedies provided by the Family Medical Leave Act and the Fair Labor Standard Act are make-whole, equitable remedies, as the Court’s opinion suggests. The Restatement of Restitution in its introductory note sets out the underlying principle:
The principles expressed in this Chapter represent not only a large body of contemporary, “positive” law but also a view of justice traceable to Roman law and beyond. The central idea is the conjunction of unjust enrichment on the one side and loss of grievance on the other. Rules of liability in restitution depend in part on the wrongful acquisition of gain and in part on harm or loss wrongfully imposed. In some cases the fact that a person has acquired a gain by wrongdoing is the principal reason for requiring him to make restitution.
The first section of the Restatement then provides:
§ 1. The General Principle: Unjust Enrichment
A person who receives a benefit by reason of an infringement of another person’s interest, or of loss suffered by the other, owes restitution to him in the manner and amount necessary to prevent unjust enrichment.
American Law Institute, Restatement of the Law 2d, Tent. Draft 1, pp. 7-8 (April 5, 1983). See also Lightly v. Qouston, 127 Eng. Rep. 774 (C.P.1808) in which Lord Mansfield applied the restitution concept to the appropriation of the right of an employee of his labor, upholding an action in the form of assumpsit for work and labor wrongly prevented by the defendant. See Palmer, Law of Restitution § 2.1, n. 5 (1978), discussing the Lightly case in a modern context. This same fundamental principle of restitution should be applied in this case where the employer wrongfully prevented the labor of the employee thereby through its action denying the employee the benefit of family medical leave. To leave the status quo in place would unjustly enrich the employer at the expense of the employee.