The FMLA and Attorney Billable Hours

from the November 2012 LERA LEL Newsletter

A recent Family and Medical Leave Act (FMLA) case tells a sad story of a young attorney struggling to cope with caring for a mentally ill, suicidal wife, a new baby and a young child, while meeting the firm’s billable hours requirement. The case was filed after he was fired for not billing enough hours. In his first year at the firm, the plaintiff met his billable hour requirement and received positive performance reviews and a bonus. The next year, however, things began to fall apart. Ayanna v. Dechert, LLP, Case No.10-12155 (D. Mass. Oct. 17, 2012).

After his wife attempted suicide, he took emergency FMLA leave to care for his wife and was off work with four weeks paid paternity leave. After he returned to work, the plaintiff claims, he was assigned less work and, as a result, had lower billable hours. In December 2008, he was fired. The plaintiff filed a complaint, alleging FMLA, Title VII, Americans with Disabilities Act (ADA), and state sex discrimination claims.

The judge’s decision includes a description of the role summary judgment plays in our system. For example, the most important function summary judgment performs is providing a way to assess the evidence in order to see whether there is a genuine need for trial. If there is no dispute about the facts, then there is no need for a trial. In other words, when the facts are not in dispute, the judge or jury has no fact finder role to play. As the Rules of Civil Procedure put it, summary judgment is to be used when there is “no genuine issue as to any material fact.”

The judge in this case found that, although the text of the FMLA does not include a claim for retaliation, the First Circuit has recognized that a retaliation cause of action can be found in the statute and its interpretative regulations. The judge then analyzed the plaintiff’s claims against the facts that have been alleged. For example, the plaintiff was told that he was being fired “due to his rating of fair and his “personal issues.” According to the judge, a reasonable jury could find that the comment was directed at Ayanna’s recent need to take FMLA leave. Furthermore, there was a factual dispute as to whether Ayanna’s billable hours were low because the firm purposefully withheld work from him in retaliation for his taking FMLA leave. The decision points out other facts that could show that the plaintiff’s firing was illegal.