The Seventh Circuit Court of Appeals recently reiterated that an employee's sudden behavioral change and unusual behavior may constitute "constructive notice" to the employer that the employee needs a Family Medical Leave Act ("FMLA")-covered mental health leave. The court's decision in Stevenson v. Hyre Electric Co. should serve as a reminder to employers that an employee may be deemed to have given notice of a serious health condition based solely on behavior the employer has observed, even if she has not provided the FMLA-documentation normally required by the company.

In general, an employee is required to provide notice to employers that she is suffering from a serious health condition in order to become entitled to leave under the FMLA. The notice need not be formal, but it must succeed in alerting the employer to the seriousness of the health condition. Such informal notice is termed "constructive notice."

In Stevenson, the court found that the employee had not provided actual notice of her serious health condition. As such, the question became whether the sudden change from a satisfactory employee to one displaying erratic and emotional behavior could constitute constructive notice to the employer, Hyre, that the employee was suffering from a serious mental health condition and was in need of FMLA leave. Stevenson's behavior (which began after a stray dog came into the work area through an open window) included yelling, cursing and screaming at coworkers, managers and the company's president, a seemingly baseless complaint to the police that she was being harassed, and complaints that she was not feeling well and was unable to work. Hyre was concerned enough about Stevenson's behavior that it changed the locks.

Citing its prior decision in Byrne v. Avon Products, the Seventh Circuit reiterated that constructive knowledge may be based on unusual behavior alone. It was not necessary for Stevenson to present evidence that she was unable to communicate her illness to her employer. Rather, Stevenson could survive the company's motion for summary judgment because she had presented sufficient evidence that her abnormal behavior provided constructive notice of her serious mental health condition and need for leave.

While the Stevenson decision turned largely on the particular facts at issue, it should serve as a reminder to employers that an employee's failure to provide actual notice of her serious health condition does not necessarily mean that she is not protected by the FMLA.

Two laws recently signed by Governor Schwarzenegger impose new requirements on companies that have employees in California. AB 392 provides for up to 10 days of unpaid leave for an employee whose spouse is on leave from deployment. AB 650 requires employers to notify employees that they may be eligible for the federal Earned Income Tax Credit ("EITC").

AB 392: Military Spouse Leave

AB 392 allows spouses of soldiers to take up to 10 days of unpaid leave when their spouses are on leave from deployment. The bill applies to employers with 25 or more employees in the United States. California employees who work an average of at least 20 hours per week and whose spouses are members of the United States Armed Forces, National Guard, or Army Reserves on active duty in an area of military conflict are eligible for the leave.

In order to be entitled to AB 392 leave, the eligible employee must provide the employer with notice that the employee intends to take time off from work during the spouse's leave from deployment. This notice must be provided no later than two business days after the employee receives official notice that his or her spouse will be on leave from deployment. The employee must also provide the employer with written documentation certifying that the spouse will be on leave from deployment during the period of the employee's requested leave. AB 392 takes effect immediately "[i]n order to serve the families of those troops currently serving in military conflicts in Iraq and Afghanistan, and to assure that these families are able to spend time together during the qualified member's leave from deployment."

With the addition of AB 392, California law now provides for more than 15 statutory leave-of-absence rights of various durations with which private employers of various sizes must comply.

AB 650: Earned Income Tax Credit Eligibility Notice

Also notable, AB 650 requires employers to notify employees that they may be eligible for the federal EITC within one week of providing the employees their annual wage summaries. The notice must either be handed directly to the employee or mailed to the employee's last known address. AB 650 provides recommended language for the notice and requires that the notice contain instructions on how to obtain any notices made available from the Internal Revenue Service for the purpose of obtaining the necessary forms to file for the EITC; the notice must clarify that those who received the EITC do not necessarily jeopardize governmental benefits, such as Medicare and Temporary Assistance for Needy Families ("TANF") payments. Finally, the bill requires that every employer process, at the request of the employee and in accordance with federal law, the Form W-5 for the advance payment of the EITC. The requirements of AB 650 apply to all companies that have employees in California.

If you would like further information regarding the legislation discussed above, please contact a member of our Labor and Employment group.

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