Tiny FMLA loophole lands company in court
August 5, 2008 by Sam NarisiPosted in: FMLA, Recent Decisions, Special Report
Under FMLA, some employees aren’t eligible for leave. But that doesn’t mean they can’t sue their employers for FMLA mistakes.
In one recent case, an employee took some time off for surgery. While he was gone, the company put someone else in his position.
When he came back to work, his boss told him his job had been filled. The company offered him a new position, which he turned down. He was terminated, and he sued under FMLA.
The company’s defense was clear-cut: The employee wasn’t on FMLA leave, since he wasn’t eligible for FMLA. The company’s headquarters had more than 50 workers, but the man worked out of his home, more than 75 miles away.
The company claimed it had just given him some time off — without the obligation to put him back in the same or similar position.
But the employee won the case. Why? A glitch in the handbook.
The company’s leave policy explained employees’ rights under FMLA and listed all the eligibility requirements — except the “50/75″ rule. When the employee told his boss he needed leave for surgery, he was sent a letter restating the handbook’s FMLA policy.
That gave him reason to assume he was taking FMLA-protected leave, the court ruled — so the company had essentially trapped itself into offering it.
Prevent managers’ mistakes
As if FMLA wasn’t tricky enough, there are ways employers get in trouble even when employees aren’t covered by the law, as this case shows.
In other cases, employees who hadn’t worked for 12 months or 1,250 hours have been mistakenly told by managers they could take FMLA — and then sued when they came back and didn’t get put in their old jobs.
To avoid this costly blunder, here are three steps all employers can take:
- Check policies. A good FMLA policy tells employees their legal rights and all the requirements they need to meet to be eligible. If you have to, give employees at different locations different versions of the handbook so there’s no confusion.
- Train managers. Managers need to know who’s eligible for leave and who isn’t. Otherwise, employees might be told something that conflicts with the law.
- Make sure HR handles all leave requests. Managers should always come to HR first when an employee needs leave. Make sure they understand the problems that can come up when supervisors approve or deny leave on their own.
Cite: Peters v. Gilead Sciences, Inc.
Tags: eligibility, Family and Medical Leave Act, FMLA, handbooks, policies
August 6th, 2008 at 9:35 am
What’s the 50/75 rule?
August 6th, 2008 at 10:16 am
I live in California the 50/75 rule is if an employee works at a worksite where the employer employs 50 or more employees either at the worksite or within 75 road miles of the worksite. Hope this helps.
August 6th, 2008 at 10:21 am
I am surprised that the company in the above story lost the lawsuit. Even if the company didn’t acknowledge the leave taken was FMLA, they abided by the FMLA rules by offering the returning employee a “comparable position”. If the employee doesn’t accept the comparable position, then the employee in essence is resigning.
August 6th, 2008 at 10:31 am
Maura,
You’re correct about that. Though, in this case, the court didn’t go into detail about the alternate position – and the company didn’t argue it fulfilled its obligations by offering a comparable position, so I think we can assume the new job was not in fact comparable.
Sam Narisi
Editor
HRLegalNews.com
August 6th, 2008 at 11:03 am
The article does not say how LONG the employee was out. But, I cannot even believe a company would replace an employee who simply took leave to have surgery. Have they no heart at all! That’s the meanest thing I have ever heard of. Companies want us to be loyal to them but have no loyalty to their employees in return. Sounds more like a feudal society with lords and serfs than a cooperative business effort to produce a product or service. What’s the name of the company so I make sure I never work their? As an HR manager I would be appalled if this happened where I worked. Hope the employee got a truckload of moeny on this one.
August 6th, 2008 at 11:23 am
I work for a small agency that is not governed (at this time) by FMLA; however we usually grant leave to employees who have to ungo surgery or who have sustained an injury (broken leg) or who have a serious medical condition. We do not pay them – they are eligible for state paid short term disabilty during that period.
Is it just me or shouldn’t the company have contacted the employee about filling his position? I’m not talking law here – it just seems the decent thing to do. Call them and let them know that you need to fill the position. Since the employee thought he was on FMLA leave just speaking to him might have alerted him to the fact that he wasn’t – maybe he could have come back sooner or worked from home or worked a shorter day etc.
This would have avoided the lawsuit and the bad feelings all around. I understand that different businesses (size and type etc) dictate how they can cope with employees who are out for an extended period of time. In both the large corporate setting and now in my much smaller agency setting the employees have always been returned to their positions.
Communication is the key – on both ends. As an HR person I’ve routinely called employees out on leave to touch base with them etc. and as an employee myself out on extended leave I have called to check in; worked from home when I was able; even worked shorter hours to return earlier.
I’m interested to hear more opinions!
August 6th, 2008 at 11:55 am
I understand clearly why the company lost the lawsuit. Although the employee was not eligible for FMLA, by telling him to refer to the FMLA policy shown in the personnel handbook, the employee assumed that he was on FMLA leave. Additionally, the company’s policy appears to have been more generous than the FMLA by not stating that 50/75 rule. In this case, the company would have to abide by the more generous policy.
August 6th, 2008 at 5:37 pm
To many employees FMLA is very confusing. The employer has a much better chance of winning a case if you explain to them in detail. We send a letter with the FMLA form (return receipt requested) specifically explaining to the employee whether he/she is eligible for FMLA and if eligible, when they are expected to come back to work. They are also expected to sign, date and return the form to us. When the expected FMLA period is complete, they are also required to bring or send back a certification from the physician for release to full or part time work or light duty. If they do not return when designated on the FMLA form, we send out another letter informing them that if they do not return by a certain date, it will indicate their voluntary resignation. I agree that communication is the key – that making contact with the employee would have been beneficial.
August 6th, 2008 at 9:36 pm
I’m confused about one of the bullet points listed, “Steps Employers Can Take.” It says:
Check policies. A good FMLA policy tells employees their legal rights and all the requirements they need to meet to be eligible. If you have to, give employees at different locations different versions of the handbook so there’s no confusion.
Do you really want us to give employees at different locations different versions of the handbook? I would think that would cause confusion. Am I missing something here?
September 19th, 2008 at 2:47 pm
Carol L,
Referencing your comment regarding “… If you have to, give employees at different locations different versions of the handbook so there’s no confusion. Do you really want us to give employees at different locations different versions of the handbook? I would think that would cause confusion. Am I missing something here?”
I’m pretty sure they mean provide different versions to employees at different locations for which those different locations would cause a difference in eligibilty for FMLA. In the original article above, since the employee in question worked at a location (presumably more than 75 miles from the worksite and also since they worked at home, presumably not meeting the 50-employee criterion), that caused a difference in eligibility.
In this particular case above it might be more confusing to have different handbooks, employee-by-employee. If you had different operating locations more than 75 miles apart at which some sites had over 50 employees and some had less than 50 employees, then you may wish to have a different version for employees at the 2 sites (e.g. all employees at site A have handbook version A and all employees at location B with less than 50 employees would have version B). Another, better option may be to simply restate the actual FMLA rule about the 50 employees/75 mile qualification requirements in one standard handbook.