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Make Sure Your FMLA Policy Defines Eligibility Correctly, Or Else

Published by on July 17, 2008

An employee takes FMLA leave.  The day after the leave starts, he receives a letter from his employer advising him of his FMLA rights.  The language of the letter tracks the employer’s FMLA policy, which provides that any employee with at least 12 months of service and 1,250 hours of work within the prior 12-month […]

An employee takes FMLA leave.  The day after the leave starts, he receives a letter from his employer advising him of his FMLA rights.  The language of the letter tracks the employer’s FMLA policy, which provides that any employee with at least 12 months of service and 1,250 hours of work within the prior 12-month period is eligible for FMLA leave.  The letter included a return to work date by which the employee had to return in order to retain his position with the company.  The employee returns from leave.  Shortly thereafter, he begins a second FMLA leave.  The employer sends another letter with similar language and includes an incorrect return date.  After the incorrect return date, but before the correct return date, the employer hired a replacement.  The employee declined an alternate position and brought suit under the FMLA and for promissory estoppel under state law.

Before the district court, the employer argued that the plaintiff was not an eligible employee because he worked at a facility with less than 50 employees within 75 miles of the facility.  The district court agreed, and dismissed the lawsuit.  The employee appealed.  What is the outcome of the appeal?

The employee won.  The Court of Appeals held that the employee should have been allowed to proceed to trial on his state law promissory estoppel claim because the employer’s FMLA policy did not state that he would not be eligible for FMLA benefits based on the 50/75 exception.  In other words, the employer’s policy — as written — was more generous than the FMLA.  The 7th Circuit’s opinion in the case can be found here.

So what is the lesson here?  Be sure that your FMLA policy says what you mean it to say.  If you want to be more generous than the law requires, great.  But if you don’t want to be more generous, take a look at your policy and notification letters and make sure they reflect what you intend.

Several blogs have reported on this case, including the FMLA Blog, the Manpower Employment Law Blawg, and Jottings By An Employer’s Lawyer.

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