How Employer Words and Actions Can Make FMLA Apply, Even When It Doesn’t

Today we have a guest blogger at The Employer Handbook. It’s one of my fave employment lawyers from Twitter, Chuck Lawson.

Chuck is a member of the Labor and Employment group at Grant Konvalinka & Harrison, P.C., where he specializes in all phases of the employer-employee relationship, including wage and hour, FMLA, ADA, unemployment compensation, and discrimination/harassment law.

After the jump, Chuck is going to school you on some FMLA pitfalls that can trip up even the best employers — and how to avoid them (the pitfalls, that is).

(Want to guest blog at The Employer Handbook? Holla at ya boy).

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Open Mouth, Insert Foot

Few statutory and regulatory schemes have caused as much confusion in application and burden in administration as the Family and Medical Leave Act (“FMLA” or “the Act”). What emerged as a seemingly simple legislative compromise balancing the interests of workers who need leave from work (leave is only available for the birth, placement or adoption of a child, the “serious health condition” of the worker or specified family members, and in certain military leave situations) and the interests of smaller employers for whom workers on extended leave would present a unique challenge (the Act only applies to employers with 50 workers in a 75-mile radius, and even then, only to workers who have worked with the employer at least 12 months and have logged 1,250 hours in the year preceding the request for leave) has proven quite complicated in operation. And that is for employers to whom the Act clearly applies by the literal wording of the statute.

But what about employers who deny FMLA leave to an employee because they don’t meet the threshold requirement of 50 employees in a 75-mile radius (known as the “50/75 rule”), or because the employee hasn’t worked 1,250 hours in the year preceding the leave request? They are in the clear, right? Not necessarily.

It turns out that numerous courts have found that employees may be entitled to FMLA leave despite the fact that their employer doesn’t meet the 50/75 rule, the employees haven’t worked 1,250 hours, and/or other requirements of the statute have not been satisfied. In extending leave that is not otherwise authorized under the Act, the courts have relied upon the doctrine of “equitable estoppel.” In general, this doctrine prevents a person from adopting a new position that contradicts an earlier position maintained by words, silence, or actions when allowing the new position to be adopted would unfairly harm another person who has relied on the previous position to his or her loss.

In the FMLA context, courts require employees asserting “equitable estoppel” to impose FMLA liability on an employer not otherwise covered by the Act to demonstrate that (1) the employer made a definite misrepresentation as to the availability of FMLA leave, (2) the employee reasonably relied on the misrepresentation, and (3) the employee suffered a detriment (e.g., termination) because of reasonable reliance on the misrepresentation. As one court declared: “[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. Minard v. ITC Deltacom Commc’ns, Inc., 447 F.3d 352, 358 (5th Cir.2006).

The facts giving rise to equitable estoppel vary widely, but have a common theme: the employer’s words and/or actions reasonably created the impression in the affected employee’s mind that the FMLA applied. For example, in Wilson v. Rawle and Henderson, LLP, 2011 WL 5237345 (E.D. Penn. Nov. 26, 2011), an employer with fewer than 50 employees in a 75-mile radius was estopped from denying FMLA eligibility when it repeatedly assured an employee that the Act applied, and sent the DOL’s approved form for FMLA leave to the employee’s physician to be completed.

Similarly, in Medley v. County of Montgomery, 2012 WL 2912307 (E.D. Penn. July 17, 2012), an employee sought leave to care for her son, was told by her employer FMLA leave was available, and was asked to execute various forms related to such leave. The court held the employer was estopped from alleging ineligibility, despite the fact that the employee had not worked the requisite 1,250 hours in the year leading up to her request for leave. Relevant to the court’s conclusion was an employer form providing that employees were eligible for “family leave” after 3 months of continued employment.

Other examples appear in the decisions of several Circuit Courts that have expressly recognized the applicability of equitable estoppel in the FMLA context. See Duty v. Norton-Alcoa Proppants, 293 F.3d 481, 493-94 (8th Cir.2002)(upholding verdict for employee whose employer approved FMLA leave but then later claimed he had not worked 1,250 hours in the previous year and terminated his employment); Kosakow v. New Rochelle Radiology Assocs., 274 F.3d 706, 723-25 (2nd Cir.2001)(reversing summary judgment for employer who denied leave for employee who worked less than 1,250 hours, because employer failed to inform her of the conditions of eligibility for leave as required under the Act and its implementing regulations).

Clearly, judicial recognition of equitable estoppel in the FMLA context creates another potential landmine in an already highly complex statutory and regulatory landscape. As seen above, employer representations (even those made without the intent to deceive), actions, and even silence (as in Kosakow), may lead to the imposition of liability under the Act when, by its literal terms, the statute does not even apply. It is critical, therefore, that employers maintain proper workplace policies regarding available leave and that they respond thoughtfully and knowledgably to employee requests for FMLA leave lest they find themselves saddled with obligations that otherwise would not exist.

Lessons for Employers.

1. Know the law. [The Act only applies to employers with 50 employees in a 75-mile radius, and leave is only available to employees who have worked for the employer 12 months AND who have worked at least 1,250 hours in the year preceding the leave request, etc.]
2. Know the facts. [FMLA requires an employer to notify an employee of eligibility for leave within 5 days of its determination regarding coverage so an employer must be ready to quickly determine how many employees work within a 75-mile radius, how long the employee has been employed, and how many hours the employee has logged in the last year, etc.]
3. Review all workplace documents for references to FMLA. [Assuming the FMLA should not apply based on number of employees, etc., employers need to regularly review all workplace documents to ensure they contain no references to FMLA leave that could create the impression that the Act applies.]
4. Train management to respond properly to requests for leave. [Employers should educate all management employees regarding the FMLA, instructing them to avoid any representations or assurances that FMLA leave is available. A good practice is to refer all leave requests to a single person, or office (such as HR), to ensure that a consistent approach is taken with respect to all such requests.]