State News : New Jersey

The Fraternal Order of Police and certain police officers challenged the City of Camden Police Department for allegedly retaliating against certain officers who complained about city policies.  One of the allegations involved the Family and Medical Leave Act.  The city initiated a policy called “directed patrols” in 2008.  That policy required officers to engage with city residents who were not suspected of any wrongdoing with the goal of obtaining information about the community and becoming more visible in the community.  Contact with individuals on directed patrols was tracked and recorded.

Several officers complained about the policy and alleged that they were then placed on a low-performer list for failure to comply with the policy.  Some were allegedly reassigned to regular patrol duty with a resultant pay decrease.  The City responded that it expected a minimum of 27 directed patrols per shift for officers on supplemental patrol and 18 for officers on regular patrol.  The City argued that it did not require an impermissible quota of arrests or citations, just a permissible quota for interactions with the public.

One officer whose performance lagged in the directed patrol policy claimed that he was approved for FMLA leave to care for his seriously ill mother in May 2009 but reprimanded for using too much time on May 27^th . Then on June 17^th he received a letter from a Lieutenant stating that he was being placed in the “Chronic Sick Category.”  The officer also complained that Camden staff visited him at home while on leave.  He argued that the City was interfering with his rights to use FMLA leave.

The City conceded that there was an internal miscommunication between one branch of the department, which knew the officer had approved FMLA leave, and another branch which did not.  The City contended that it was not trying to deter the officer from using his FMLA rights.

The Third Circuit Court of Appeals held, “Camden officials only visited Officer Holland once while he was on leave, and we agree that this was minimally intrusive.” The Court added, “Although we are sympathetic to Officer Holland’s family situation, there is no right in the FMLA to be ‘left alone.’”   It added, “Camden’s actions may have been insensitive, but they were not beyond the limitations the FMLA places on employers attempting to manage their workplaces.”

The Court went on to state that it found no particular harm done to Officer Holland.  It cited the case of Shtab v. Greate Bay Hotel, 173 F. Supp. 2d 255 (D.N.J. 2001).  “Shtab does not support Officer Holland’s claim that reprimands such as those he alleges can, on their own, support relief under the FMLA.  Rather, they must occur in tandem with actual harm.  Officer Holland does not allege he was actually denied FMLA leave.  In fact, he concedes that he was able to take time off to care for his mother.” The Court therefore affirmed the dismissal of the FMLA claim.

This case can be found at FOP v. City of Camden, 842 F.3d 231 (3d Cir. November 17, 2016).  The holding is consistent with other federal cases that have held that while someone is on FMLA, the employer has a right to require that employees call in and follow employer policies.  The Court here found that one visit to the employee probably to make sure the employee was not abusing FMLA leave was certainly not intrusive.

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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.