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The Practical Employer

The Practical Employer

Employer Backs Itself Into FMLA Claim for Ineligible Employee

One case underscores the importance of training those who manage your FMLA program on the law's special coverage and eligibility requirements.

July 24, 2012
Related Topics: Payroll, Miscellaneous Legal Issues, Wrongful Discharge, Retaliation
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I've written before about the FMLA's unique rules for when an employer is covered and when an employee becomes eligible to take leave.

  • The FMLA covers any private employer that has 50 or more employees on the payroll during 20 or more calendar workweeks in either the current or the preceding calendar year.
  • An employee becomes eligible to take leave under the FMLA once the employee has worked for at least 12 non-consecutive months, worked 1,250 hours during the prior 12-month period, and works at a location where the employer has 50 or more employees within a 75-mile radius.

What happens, however, if a non-covered employer mistakenly grants FMLA leave to an employee, or if a covered employer mistaken grants FMLA to an ineligible employee? If the employer catches its mistake and fires the employee for taking unexcused absences, can the employee sue for retaliation under the FMLA? According to the court in Medley v. County of Montgomery (E.D. Pa. 7/16/12), the answer is yes.

Medley requested intermittent leave because of her son's serious health conditions. Even though she had worked less than 1,250 hours during the prior 12 months, county officials told her that she qualified for FMLA leave and provided her with various FMLA forms. Once she started taking the intermittent leave, however, the county began to write her up. Within days, the county fired her for taking unauthorized leaves.

The court concluded that Medley could pursue her FMLA retaliation claim under an estoppel theory:

"The doctrine of equitable estoppel is used to prevent 'one party from taking unfair advantage of another when, through false language or conduct, the person to be estopped has induced another person to act in a certain way, with the result that the other person has been injured in some way.'" …

In the context of the FMLA, "equitable estoppel may, in an appropriate factual scenario, provide a means of redress for employees who detrimentally rely on their employers' misrepresentations about FMLA eligibility." … "[A]n employer who without intent to deceive makes a definite but erroneous representation to his employee that she is an 'eligible employee' and entitled to leave under the FMLA, and has reason to believe that the employee will rely upon it, may be estopped to assert a defense of non-coverage" if the employee reasonably relied on the misrepresentation to her detriment.

This case underscores the importance of training those who manage your FMLA program on the law's special coverage and eligibility requirements. These employees must intrinsically understand the numerical thresholds and how to apply them. As the Medleycase illustrates, you could be bound to mistakes (computational or otherwise), which could prove costly.

Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

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