The statute of limitations for brining claims under the Family and Medical Leave Act is two years from the last alleged illegal act. However, this period is increased to three years in the event of a willful FMLA violation by the employer. Last month, the Ninth Circuit Court of Appeals set forth the requirements for a plaintiff to demonstrate that an FMLA denial or interference claim involved intentional conduct.

In Olson v. United States of America, the plaintiff was a federal government employee who took several weeks of FMLA leave, but she declined to return when she could not reach an agreement with her employer over the terms of such return. During these discussions, the plaintiff performed and was paid for a limited amount of telework. She filed suit, alleging a willful FMLA violation. The suit was filed more than two years, but less than three, after the last alleged illegal act. The district court dismissed the complaint as untimely, and the plaintiff appealed.

The Ninth Circuit affirmed the dismissal, finding that the complaint did not involve willful misconduct by the employer. The court noted that the standard for willful FMLA claims is the same as that used under the Fair Labor Standards Act. This requires evidence that the employer knew or showed reckless disregard for whether its conduct violated the law. In this case, the Ninth Circuit concluded that the employer’s actions were not willful because they were taken based on the advice of legal counsel, the employer attempted to bring the employee back to work, and she worked and was paid for some time following the end of her leave.

This case demonstrates the need to carefully document FMLA leave discussions with employees and, in appropriate situations, to consult with legal counsel regarding the employer’s and employee’s rights under the statute.