Vindication for Forever Living in FMLA lawsuit

On Thursday, November 14, 2013 a unanimous federal jury returned a verdict in favor of BurnsBarton client Forever Living Products International, in a trial testing the notice requirements of the federal Family and Medical Leave Act (“FMLA”).  Plaintiff Mary Clare Peak was discharged in September 2010 for failing to come to work or report her absence prior to her scheduled shift for two consecutive days.  Peak claimed that her history of illness prior to her discharge, and a phone call she had with her manager on the day she was discharged, put Forever Living on notice that she needed FMLA leave.  Forever Living countered that Peak had a duty to call in before her shift, and that her subsequent phone call and prior sick leave were inadequate to provide FMLA notice or merit FMLA protection.  The 9-person jury agreed, taking just 10 minutes to unanimously decide the matter following 3 days of testimony.  The lawsuit began with a 314-paragraph complaint that asserted 6 separate causes of action.  But the two-plus years of determined effort by Forever Living and its lawyers narrowed the issues and eliminated claims.  Ultimately, the jury agreed with Forever Living that attendance matters, and employees cannot avoid legitimate discipline by asserting FMLA rights as a shield.

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