Court Refuses To Decide Whether An Ineligible Employee Became Eligible For FMLA Because Of The Employer’s Statements


by Steve Bogue

Bogue, A. Stevenson
sbogue@mcgrathnorth.com
(402) 341-3070

Can an employer’s misstatements about FMLA coverage entitle an ineligible employee to FMLA benefits? That was a question which faced a Circuit Court in a recent appeal of the dismissal of an employee’s complaint of FMLA interference.

Most employers are familiar with the requirement that in order for employees to be covered by the FMLA, the employer has to have 50 employees within a 75-mile radius of where the employee works. The Court examined that issue in Cowman v. Northland Hearing Centers, Inc., and concluded that since there were fewer than 50 individuals employed within 75 miles of the location where the employee worked, neither the employee nor others at that location were qualified for FMLA coverage.

However, the employee went one step further. She argued that she was entitled to rely upon the employer’s mistaken misrepresentation that she was eligible for FMLA leave under the doctrine of “equitable estoppel.” Stated directly, under equitable estoppel an employee is required to show that her employer’s actions or comments caused her to change her position for the worse. In other words, that she relied to her detriment on her employer’s misrepresentation. The Plaintiff here claimed that the employer’s misstatement that she was eligible for FMLA leave did just that. However, the Court concluded that since the employee’s medical condition required emergency surgery nearly two weeks before the employee’s scheduled leave date, she could not show that she detrimentally relied upon her employer’s misrepresentation that she was eligible for leave. Although there remains an issue about whether the doctrine of “equitable estoppel” is ever available under the FMLA, the Court chose to avoid that issue and make its decision on the facts of the case.

The fact that this case got as far as it did illustrates the importance of “going back to the basics” when faced with a request for FMLA leave. In other words, the employer needs to check whether it, as an employer, is required to extend FMLA benefits to its employees in a particular location, and then should also check for individual employee eligibility based upon 12 total months of service and 1,250 working hours in the previous 12 months. The employer in the Northland case prevailed but not before it went all the way through the trial court to the Court of Appeals. A bit more diligence on the front end could have avoided the entire process.

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