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Does She Have to Use All of Her Administrative Remedies Before Filing Her FMLA Case

August 27, 1999
Related Topics: Miscellaneous Legal Issues, Employee Leave, Policies and Procedures, Featured Article
Issue: A firefighter sued the city where you are HR director under the Family and Medical Leave Act of 1993 (FMLA) claiming that she had been unlawfully discharged for requesting medical leave after suffering an injury during the course of her employment. The city has defended the suit by claiming that the employee failed to exhaust her administrative remedies before filing her case in federal court. Both the "City Charter" and the "City’s Personnel Rules and Regulations" granted the employee the right to an administrative review of any alleged denial of leave under the FMLA. The city is taking the position that the suit should be dismissed because the employee didn’t exhaust the city’s internal administrative procedures prior to bringing suit under the FMLA.

Answer: The employee was not required to comply with the city’s internal administrative review procedures before bringing her FMLA claim in federal court. If Congress has specifically required the exhaustion of administrative remedies, that will be a prerequisite to filing suit in court. However, the FMLA does not contain such an "exhaustion requirement." Thus, the court in this case was required to determine whether the employee was obligated to exhaust her administrative remedies prior to commencing the federal claim.

In deciding, the court balanced the employee’s interest in retaining prompt access to a federal judicial forum against the city’s interest in "efficiency or administrative autonomy" that the exhaustion requirement was designed to further. The court found that the employee was not required to exhaust the city’s administrative procedures because

  1. she was seeking to enforce important rights granted to her by federal law,
  2. the language presented regarding the city’s administrative remedies was "permissive," and in no instance were employees informed that they were required to utilize these procedures, and
  3. the deadlines set forth in the city’s rules and regulations were too short, amounting to "a trap for the inexperienced and unwary employee."

Drafting problem?
Several aspects of the city’s Charter and Rules and Regulations contributed to the court’s denial of its request to dismiss the employee’s claim. First, the Charter stated that an employee "shall ... have the privilege of a public hearing before the Civil Service Board" in order to appeal a demotion, suspension, or discharge. Significantly, the Charter did not state that an employee "must" exercise this privilege in order to sue the city. Secondly, the city’s Rules and Regulations stated that an employee who had been subject to discipline "may" request a review of the action either orally or in writing, within three and ten days, respectively. Again, the court noted that the rules and regulations did not require employees to request a review, and that by allowing employees only three to ten days to request review, the employer was providing an inadequate amount of time to formulate a response to the disciplinary measures. Finally, the court observed that the city had not asserted that it would be prejudiced in any way by the employee’s failure to exhaust its administrative process.

Cite: Krohn v. Forsting, (DC ED Mo) 138 LC 33,901.

Source: CCH Incorporated is a leading provider of information and software for human resources, legal, accounting, health care and small business professionals. CCH offers human resource management, payroll, employment, benefits, and worker safety products and publications in print, CD, online and via the Internet. For more information and other updates on the latest HR news, check our Web site at

The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion.

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