There was a time in the middle of the last century when the lure of the skies drew young women to the "glamorous" job of being a flight attendant. Times have changed. Most people now understand that being a flight attendant is hard and is not made any easier by belligerent passengers and the stress of the modern air travel industry.

Making things even more difficult is the network of federal laws that affect airlines, including the Family and Medical Leave Act (FMLA). In a recently decided lawsuit filed by a disgruntled former employee, Delta Airlines learned the importance of knowing and following the Act. Because the FMLA affects many private employers and not just airlines, Delta is a good example of a conscientious employer.

'Final Warning'

In 2010, Delta terminated flight attendant Georjane Branham after she reported to work with an elevated blood alcohol content. After she completed an alcohol treatment program, however, Delta rehired her. The company placed her on "Final Warning," which meant it could terminate her for "any infraction of [Delta's] policy or failure to meet [Delta's] standards."

At 11:30 p.m. on June 7, 2012, Branham was "on call" and accepted an assignment for a flight that left at 6:00 a.m. the next day. At 1:55 a.m., Branham called Delta and said she could not be on the flight because she was taking care of her mother, who was "very ill."

According to Branham's supervisor, when an on-call flight attendant backs out of an accepted flight 5 hours before the flight begins, it is considered a "failure to cover," and she may be subject to discipline. Thus, Delta initially suspended Branham. Upon review, however, Delta terminated her because she was on "Final Warning" and she had three absences in the previous 12 months.

Branham sued Delta, arguing the company interfered with her rights under the FMLA. The trial court ruled against her, and she appealed to the 10th Circuit—which covers Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming.

FMLA Interference

The 10th Circuit noted that the FMLA "makes it unlawful for an employer to interfere with, restrain, or deny the exercise or attempt to exercise any right provided under the FMLA." An employer can defeat an FMLA interference claim by showing "that the employee would have been terminated . . . regardless of the request for FMLA leave."

Specifically, the court noted, "An employer generally does not violate the FMLA if it terminates an employee for failing to comply with a policy requiring notice of absences, even if the absences that the employee failed to report were protected by the FMLA."

Thus, because Branham was on "Final Warning," had three absences in the preceding 12 months, and violated the company's notice-of-absence policy by backing out of a flight less than 5 hours before takeoff, Delta could not be held liable for interfering with her FMLA rights. The 10th Circuit stated, "Delta carried its burden of proving that . . . Branham was dismissed for reasons unrelated to any FMLA leave to which she might otherwise have been entitled."

FMLA Notice

Branham also argued that Delta violated the FMLA by not informing her that she was entitled to seek FMLA leave to take care of her mother. The 10th Circuit acknowledged that if an employer "is on notice that the employee might qualify for FMLA benefits, the employer has a duty to notify the employee that FMLA coverage may apply." Nevertheless, the court clarified that calling in sick without providing more information is not sufficient notice to trigger that obligation.

Furthermore, the 10th Circuit rejected Branham's argument because she had taken FMLA leave multiple times for herself and to care for family members during her employment with Delta. Thus, because she already knew about FMLA leave and this was not the first time she had taken or sought FMLA leave, any failure by Delta to provide information about FMLA leave was not problematic. Branham v. Delta Airlines, No. 16-4092 (10th Cir., Feb. 3, 2017).

Lessons Learned

You must inform an employee of her FMLA rights if you have reason to believe the FMLA may cover her requested leave. An employee does not have to use any magic words. Indeed, an employee doesn't have to say anything. If the circumstances are such that you are on notice that the employee might qualify for FMLA benefits, you must notify her of her rights.

That said, the more an employee exercises her FMLA rights, the more courts—or at least the 10th Circuit—will expect her to be aware of those rights and the less strictly the FMLA notification requirements will be enforced against her employer.

Furthermore, although you may not interfere with employees' FMLA rights, the FMLA does not necessarily stand as a bar to appropriate disciplinary action—provided the discipline is justified and is not merely a pretext (excuse) to hide illegal interference. Indeed, as this case shows, an employee on "Final Warning" who violates a notice-of-absence policy cannot use the FMLA to hide from appropriate discipline.