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Employment Law
Alert July 23, 2009
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Labor and
Employment Practice Group Leaders
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Practice Group
James E. Baiers
Connie M. Cessante
Anne-Marie Vercruysse Welch
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Double Check:
Employer's Mistake in Determining Eligibility under FMLA Could Lead
to Coverage
A recent decision from the Sixth
Circuit should have employers checking and double checking employee eligibility
for leave under the Family and Medical Leave Act. In Dobrowski v. Jay Dee Contractors, Inc., the
Court determined that an employer's unintentional mistake in
determining eligibility could require coverage of the Act where the
employee reasonably relies on the misrepresentation of eligibility.
Daniel Dobrowski, an employee of Jay
Dee Contractors, Inc., scheduled surgery requiring him to take a
medical leave of absence. Dobrowski filled out an application
for FMLA leave and returned it to the employer. Jay Dee
responded by stating, "[p]ursuant to the Family and Medical
Leave Act, Jay Dee Contractors, Inc. will leave [your] position open
for at least (12) weeks from October 18, 2004." The letter
also indicated that Dobrowski was an eligible employee and confirmed
that the company would provide him with FMLA leave. Dobrowski
began his leave in October and returned to work in December, prior to
expiration of the 12 week period. Upon his return to work, Jay Dee
terminated Dobrowski. Dobrowski filed suit against Jay Dee
claiming his termination violated the FMLA.
FMLA provides 12 weeks of job protected leave to eligible employees
that work in a location with 50 or more employees in a 75 mile
radius. Jay Dee defended the lawsuit by arguing that Dobrowski
was not eligible for FMLA because it employed fewer than 50 people in
a 75 mile radius of his worksite. Dobrowski claimed that Jay
Dee was estopped from arguing FMLA did not apply because it had
represented to him that he was eligible for FMLA and he had taken the
leave of absence.
The Court analyzed the appropriate standard for application of the
doctrine of equitable estoppel to a claim under the FMLA. It
determined that a plaintiff need show only: (1) a definite
misrepresentation of a material fact; (2) a reasonable reliance on
the misrepresentation; and (3) a resulting detriment to the party
reasonably relying on the misrepresentation. The Court
indicated that the plaintiff need not show the employer intentionally misrepresented a
material fact.
Ultimately, the Court found that Dobrowski had not established
reliance on Jay Dee's misrepresentation regarding his eligibility for
FMLA. Dobrowski failed to point to any action or statement
showing that his surgery was contingent upon his understanding that
he was eligible for FMLA. His claim failed on that basis.
However, where an employee can show detrimental reliance on the
employer's mistaken statement of eligibility, equitable estoppel may
apply and the employee would be protected by the Act. Employers
should pay close attention to analyzing eligibility criteria
including whether 50 or more employees work within a 75 mile radius
of the employee's worksite. Employers should also take care in
determining whether the employee has met the service requirements of
the FMLA, including 12 months of employment with the employer and at
least 1,250 hours within the prior 12 months before leave is
taken. Employers should also review their FMLA policies to
ensure that eligibility requirements are specified.
If you have
any questions regarding FMLA or this article, please contact
Stephanie Clifford at (313) 965-8368, or sclifford@clarkhill.com or your
Clark Hill Labor and Employment attorney.
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To find out
more about Clark Hill and our Labor and Employment Practice Group,
visit clarkhill.com
or call 800.949.3124
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