Catherine Cranfield, Senior Editor
February 18, 2016
Employers often fire employees for excessive absences. When an employee believes that the denial of Family and Medical Leave Act (“FMLA”) leave for some absences contributed to the high number of absences, however, litigation often arises. Problems appear when these denials occur more than two years prior to the claim being made. While relying on countervailing policy considerations, federal circuits have split on when exactly the statute of limitations on a FMLA claim begins to run. Although the courts have come to different conclusions based on policy reasons, the correct answer may be found in the language of the statute itself.
I. The Family and Medical Leave Act and Its Unique Statute of Limitations
Congress passed the FMLA in 1993 in an effort to provide balance between work and family demands and promote the stability and security of the family. The FMLA was enacted to allow employees to take reasonable leave from work for certain medical reasons. Under the FMLA, employers are prohibited from interfering with an employee’s attempt to exercise his rights under the statute and may not terminate or discriminate against an employee because he has filed a claim under the FMLA. Generally, an employee must file the claim under the FMLA within “2 years after the date of the last event constituting the alleged violation for which the action is brought.” Although the statute of limitations depends on the determination of the “last event constituting the alleged violation,” courts are unclear exactly which types of events this may include—specifically whether termination is included.
II. A Growing Circuit Split
Recently, a circuit split has developed regarding whether the termination of an employee can constitute the last event creating the asserted violation for which the action under the FMLA is brought. Although only a few circuits have weighed in so far, courts have disagreed on the issue of termination concerning the running of the statute of limitations. The Sixth Circuit has recently held that an employee’s termination can constitute a “last event” under the FMLA, though the Seventh and Eighth Circuits have found the opposite.
In Butler v. Owens-Brockway Plastic, an employee was discharged for excessive absences. When determining the statute of limitations, the Sixth Circuit relied solely on policy considerations and found that the employee’s termination constituted the “last event” bringing about a violation of the FMLA. In other cases, the Sixth Circuit did not question a plaintiff’s assertion that his termination constituted the last violation. Further, district courts have followed suit, finding that the termination itself can be an actionable violation from which the statute of limitations begins to run.
Unlike the Sixth Circuit, the Eighth Circuit found that termination was not a “last event.” The employee in Reed v. Lear Corporation was fired after accumulating excessive absences. Without explaining its reasoning, the court found that the statute of limitations began to run when the employer improperly denied the employee FMLA leave, not when the employee was later fired for excessive absences. The court in Beekman v. Nestle Purina Petcare followed this precedent, finding that the statute of limitations began to run after each denial of leave rather than after an employee’s termination.
Most recently, the Seventh Circuit weighed in on the interpretation of the FMLA’s language. In Barrett v. Illinois Department of Corrections, an employee brought suit claiming a violation of her FMLA rights after she was fired for excessive absences. The employee claimed that although the absences she believed her employer should have classified as FMLA leave were denied more than two years earlier, the statute of limitations did not start to run until her termination based on attendance. Thus, her claim was timely. The court found the precedent in the other circuits to be weak, but ultimately held that the employee’s termination did not constitute a “last event.” Rather, for purposes of the statute, “events” included each time the employer denied the employee FMLA leave. After focusing on the underlying alleged violation and potential policy arguments, the court found that to bring a claim under the FMLA, the employee would have had to file the action within two years of the denial.
III. An Answer Found in Language Rather Than Policy
Though falling on opposite sides of the circuit split, both the Sixth and Seventh Circuits relied in part on policy reasons when determining what constitutes a “last event” under the FMLA. The Sixth Circuit in Butler believed that the employee’s termination was the first employer action serious enough to cause the employee to bring an FMLA claim. Anything that happened before the termination, including negative attendance marks, was too unimportant at the time of the occurrence to force the employee to bring an action. The Seventh Circuit, in contrast, held that allowing an employee’s termination for excessive absences to constitute a “last event” could permit an employee to toll the statute of limitations forever unless and until he is fired. Although an employee may think that filing suit after each individual improper denial of FMLA leave is impractical, he or she has that option, as the statute makes available both judicial and administrative remedies for an employee.
Although the circuits have turned to policy to draw a conclusion, they may find the correct answer to the uncertainty simply in the language of the statute itself. The statute says that an employee must bring a claim within two years “after the date of the last event constituting the alleged violation for which the action is brought.” In cases where the employee is fired for overall excessive absences, the employee typically does not claim that all of these absences came from the denial of FMLA leave. Therefore, the unprotected absences caused the termination, rather than a violation of the employee’s FMLA rights. This fact suggests that the termination is not actually the FMLA violation claimed. Instead, the violation claimed is the specific denial of leave. Under the language of the statute, the last event upon which the violation is alleged is the denial, not the termination.
As the current circuit split has shown, courts have found the statute of limitations for FMLA claims to be unclear and have turned to policy considerations to determine the correct reading of the statute. The correct meaning, however, is found in the language of the statute suggesting that the statute of limitations begins to run with each denial of FMLA leave rather than later with the termination for excessive absences.
 199 F.3d 314, 317 (6th Cir. 1999).
 29 U.S.C.A. § 2617 (c) (2008) (emphasis added).
 Butler, 199 F.3d at 317.
 Barrett, 803 F.3d at 899; Reed, 556 F.3d at 681–82.
 Butler, 199 F.3d at 315.
 See infra Part III.
 Id. at 317.
 Crugher v. Prelesnik, 761 F.3d 610, 614 (6th Cir. 2014).
 See Maher v. Int’l Paper Co., 600 F. Supp. 2d 940, 953 (W.D. Mich. 2009).
 556 F.3d at 677.
 Id. at 681.
 635 F. Supp. 2d 893, 906–07 (N.D. Iowa 2009).
 Barrett v. Ill. Dep’t of Corr., 803 F.3d 893, 894 (7th Cir. 2015).
 Id. at 896 n.1.
 Id. at 895–96.
 Id. at 897.
 Id. at 896–99; See infra Part III.
 Family and Medical Leave Act of 1993, Pub. L. No. 103-3, 107 Stat. 6.
 29 U.S.C. § 2601 (2014).
 Id. § 2615.
 Id. § 2617(c)(1). The statue of limitations is extended to three years from the same date if there was a “willful violation.” Id.
 See Barrett, 803 F.3d at 899 (finding that each denial of leave constitutes a last event under the FMLA but that termination does not); Butler, 199 F.3d at 316–18 (finding that both denials of leave and termination can be considered last events for FMLA purposes); Reed, 556 F.3d at 681 (finding that a termination was not a last event under the FMLA, but rather the last event was the denial of leave).
 See Barrett v. Ill. Dep’t of Corr., 803 F.3d 893, 899 (7th Cir. 2015) (finding that each denial of leave constitutes a last event under the FMLA); Butler v. Owens-Brockway Plastics Prods., Inc., 199 F.3d 314, 316–17 (6th Cir. 1999) (finding that both denials of leave and termination can be considered last events for FMLA purposes); Reed v. Lear Corp., 556 F.3d 674, 681–82 (8th Cir. 2009) (finding that a termination was not a last event under the FMLA).