Employee can’t sue employer’s defense counsel for FMLA interference or defamation

An employee was unable to advance his claims of FMLA interference and defamation against the law firm representing his former employer (who he was also suing for discrimination). Granting the law firm’s motion to dismiss his claims, which were based on the defense attorney’s alleged conduct and statements during DOL proceedings, a federal court in Kansas determined that the law firm was not an “employer” under the FMLA, and the attorney’s communications to the DOL investigator were entitled to an absolute privilege.

Law firm added as defendant.

The employee brought a discrimination suit against his former employer alleging violations of the ADA and other claims. He subsequently also sued the employer’s legal counsel, asserting that the law firm interfered with his FMLA rights and defamed him while representing the employer at the DOL’s administrative proceedings. Specifically, he alleged that its attorney interfered with his FMLA rights by representing the employer despite knowing that it had wrongfully discriminated against him and defamed him by providing false information to the DOL investigator.

Lawyer’s inclusive language.

To support his claim that the attorney acted as his “employer” under the FMLA, the employee pointed to the DOL investigator’s report, which indicated that the attorney “stated that they would start an interactive dialogue” with him, that “they would recommend an earlier call-in time,” and that “she would discuss the removal of [his] write-up.” He claimed that these statements indicated that the attorney personally participated in the employer’s employment decisions—as such, she could be liable as his employer.

Not an “employer” under FMLA.

The law firm argued that it could not be held liable under the FMLA because it was not his employer. Notably, the Tenth Circuit has not addressed whether a law firm representing a company becomes an “employer” to a company’s employees under the FMLA. However, a district court that addressed the issue held that an FMLA interference claim could not be maintained against the defending attorneys. Rather, “attorneys retained to defend against plaintiff’s earlier FMLA suit are simply not [persons] who act, directly or indirectly, in the interest of an employer to any of the employees of such employer.”
The court here agreed, ruling that as a general rule, attorneys retained to defend an employer against an employee do not become an “employer” merely by their representation. And while the employee alleged additional facts in support of the law firm taking on an employer role—such as her “inclusive language” during the meeting with the DOL investigator indicating that she would personally start an interactive dialogue with the employee, recommend an earlier call-in time for him, and discuss the removal of his write-ups—what she said at the meeting was not determinative.

FLSA test applied.

Moreover, the employee failed to show that the law firm was his employer under the FLSA’s “totality of the circumstances” test, which courts have applied in the FMLA context. He did not allege that the firm possessed hiring or firing power, determined the rate and method of payment, or maintained employment records. And while its attorney may have said that she would recommend an earlier call-in time for him, this alone was insufficient to tip the balance in his favor.

No interference.

Finally, even if the law firm were his employer, the attorney’s actions—which included starting an interactive dialogue, recommending an earlier call-in time, and discussing the removal of his write-ups—did not interfere with his FMLA leave.

No defamation.

The court also dismissed the employee’s defamation claim against the law firm since the communications during the DOL proceedings were entitled to an absolute litigation privilege. Whether a communication is privileged is a question of law for the court to decide, and an absolute privilege applies not only to communications to the courts, but also to quasi-judicial proceedings before administrative bodies. Since the employee’s defamation claim relied entirely on statements that the attorney made to the DOL investigator during administrative proceedings, these communications were entitled to an absolute privilege.

SOURCE: Carter v. Spirit Aerosystems, Inc., (D. Kan.), No. 6:16-cv-01350-EFM-GEB, November 13, 2017.
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