Malatesta Law Office Files Lawsuit in Middle District of Florida Against Wal-Mart Stores, Inc. for Alleged Violation of Family Medical Leave Act (FMLA)

January 2018

The Malatesta Law Office has filed a lawsuit in the Middle District of Florida against Wal-Mart Stores, Inc. The Plaintiff, an Assistant Store Manager, alleges Wal-Mart Stores, Inc. violated the Family Medical Leave Act of 1993, 29 U.S.C. § 2601, et seq. (FMLA) when he was terminated from his job following an injury on store premises and subsequent surgery. The Plaintiff took a protected leave of absence for a serious health condition, a knee injury. It is also alleged that the Plaintiff’s supervisor, a Walmart Store Manager, refused to prepare an accident or incident report and also denied to the employee’s request to seek medical attention.

The Plaintiff worked at the employer’s Tampa, FL Store #1501 location. The company falls under FMLA because it employs 50 or more employees for 20 or more calendar work weeks in the calendar year.

Count I of the lawsuit alleges the company engaged in FMLA Retaliation causing the employee lost wages, salary, benefits and other remuneration. The Plaintiff is demanding (a) A judgment that Wal-Mart engaged in retaliatory behavior against the Plaintiff in violation of the FMLA; (b) Compensation for lost wages, benefits, and other remuneration; (c) Reinstatement of Plaintiff to a position comparable to Plaintiff’s prior position with back pay plus interests, pension rights and all benefits, or in the alternative, enter a judgment pursuant to 29 U.S.C. Section 2617(a)(1)(A)(i)(II) against Defendant and in favor of Plaintiff for the monetary losses Plaintiff suffered as a direct result of Wal-Mart’s violation of the FLMA; (d) Front pay; (e) Liquidated damages; (f) Prejudgment interest on all monetary recovery obtained; (g) All costs and attorney’s fees incurred in prosecuting these claims; and (h) Any other such relief as this Court deems just and proper.

Count II of the lawsuit alleges that the company engaged in FMLA Interference, causing the employee lost wages, salary, benefits and other remuneration. The Plaintiff is demanding a) A judgment that Defendant interfered against the Plaintiff in violation of the FMLA; (b) Compensation for lost wages, benefits, and other remuneration; (c) Reinstatement of Plaintiff to a position comparable to Plaintiff’s prior position with back pay plus interests, pension rights and all benefits, or in the alternative, enter a judgment pursuant to 29 U.S.C. Section 2617(a)(1)(A)(i)(II) against Wal-Mart and in favor of Plaintiff for the monetary losses Plaintiff suffered as a direct result of Defendant’s violation of the FLMA; (d) Liquidated damages; (e) Prejudgment interest on all monetary recovery obtained; (f) All costs and attorney’s fees incurred in prosecuting these claims; and (g) Any other such relief as this Court deems just and proper.

Count III of the lawsuit alleges the company engaged in unlawful retaliation and wrongful discharge under F.S. Section 440.205, Worker’s Compensation Retaliation by attempting to coerce and interfere with the Plaintiff’s exercise of worker’s compensation law rights when it denied the Plaintiff’s request to seek medical attention. It is also alleged that Wal-Mart violated Florida Worker’s Compensation Law when it discharged the Plaintiff when he requested time off to seek medical attention.

The U.S. Department of Labor states:

The Family and Medical Leave Act (FMLA) provides certain employees with up to 12 weeks of unpaid, job-protected leave per year. It also requires that their group health benefits be maintained during the leave.

FMLA applies to all public agencies, all public and private elementary and secondary schools, and companies with 50 or more employees. These employers must provide an eligible employee with up to 12 weeks of unpaid leave each year for any of the following reasons:

• for the birth and care of the newborn child of an employee;
• for placement with the employee of a child for adoption or foster care;
• to care for an immediate family member (spouse, child, or parent) with a serious health condition; or
• to take medical leave when the employee is unable to work because of a serious health condition.

Employees are eligible for leave if they have worked for their employer at least 12 months, at least 1,250 hours over the past 12 months, and work at a location where the company employs 50 or more employees within 75 miles. Whether an employee has worked the minimum 1,250 hours of service is determined according to FLSA principles for determining compensable hours or work.

Time taken off work due to pregnancy complications can be counted against the 12 weeks of family and medical leave.

A final rule effective on January 16, 2009, updates the FMLA regulations to implement new military family leave entitlements enacted under the National Defense Authorization Act for FY 2008.

Special rules apply to employees of local education agencies. The Department of Labor administers FMLA; however, the Office of Personnel Management (OPM) administers FMLA for most federal employees.

Florida Statute 440.205 – Coercion of employees states:

No employer shall discharge, threaten to discharge, intimidate, or coerce any employee by reason of such employee’s valid claim for compensation or attempt to claim compensation under the Workers’ Compensation Law.

Attorney Frank M. Malatesta is representing the Plaintiff in this Family Medical Leave Act (FMLA) and Florida Worker’s Compensation Law case. The Malatesta Law Office specializes in employment issues serving both employees and employers that conduct business throughout Florida. The Malatesta Law Office has offices in Venice, Orlando and Miami, Florida.

For further information, please contact Frank M. Malatesta, Esq. at (941) 256 – 3812.