When “not eligible” turns out to mean “eligible”
February 12, 2015
By Anthony Kaylin, courtesy of SBAM Approved Partner ASE
As HR professionals know, an employee becomes eligible for job-protected leave by meeting three criteria: (1) being employed by a covered employer for at least 12 months; (2) working at least 1,250 hours in the prior 12-month period; and (3) working at a location that employs at least 50 employees within a 75-mile radius. But can an employer unwittingly give an employee who doesn’t meet all three prongs an FMLA right?
On January 26, the 6th Circuit Court of Appeals created such an opportunity for employees by its ruling in Tilley v. Kalamazoo County Road Commission.
Tilley is 59 years old. He began working for the Road Commission in 1993. In 2008, he began reporting principally to Travis Bartholomew, the Road Commission’s general superintendent. Over time, the relationship deteriorated. A number of problematic incidents occurred, the final one involving Tilly
failing to provide Bartholomew with a revised job description by a certain deadline. According to Tilley, on the morning he was to deliver the job description, August 1, 2011, he experienced symptoms that made him fear that he was suffering a heart attack. A co-worker took Tilley to the hospital, and Tilley was admitted for observation. Tilley’s doctors discharged him the next day, which was the day that Tilley’s wife informed the Road Commission that Tilley would not be able to return to work until at least August 5th. Tilley never submitted the final revisions to the job assignment.
Carla Benison (“Benison”), an “employee representative” for the Road Commission, sent Tilley FMLA paperwork on August 9th related to his absence from work. In her cover letter, Benison told Tilley that he was “eligible for FMLA leave” and that it was “important that we [ ] utilize Family Medical Leave Act (FMLA) leave” during his time off. Benison also provided Tilley a “Notice of Eligibility and Rights & Responsibilities” form (the “Eligibility Notice”) on which Benison checked the box “inform[ing]” Tilley that he was “eligible for FMLA leave.” The Eligibility Notice contained another box, which Benison left blank, to be checked when an employee was “not eligible for FMLA leave” because he “[did] not work and/or report to a site with 50 or more employees within 75–miles.” Finally, the Eligibility Notice informed Tilley that he needed to obtain and submit an appropriate medical certification from his physician to support his request for FMLA leave.
A few days later, on August 12th, the Road Commission mailed Tilley a letter formally terminating his employment. The Road Commission told Tilley that it was terminating his employment for a number of reasons including the failure to provide the revised job description.
Tilly filed a lawsuit against the Road Commission alleging in part that the Road Commission interfered in his FMLA rights. The district court held that the Road Commission was entitled to summary judgment on Tilley’s FMLA claims because Tilley was not an “eligible employee” under the FMLA’s “prong three”: the Road Commission did not employ at least 50 employees at, or within 75 miles of, his worksite at the time he sought FMLA leave. The Road Commission presented evidence that it employed fewer than 50 people within a 75-mile radius of Tilley’s workplace when Tilley requested his FMLA leave. Tilly did not present any contrary evidence.
The Sixth Circuit did state that the District Court was correct in its interpretation of the facts and the law, but still overturned the summary judgment. The Sixth Circuit recognized the principle of equitable estoppel: “Our circuit recognizes that in certain circumstances equitable estoppel applies to employer statements regarding an employee’s FMLA eligibility, preventing the employer from raising non-eligibility as a defense.” In order “to prevail on his equitable estoppel argument,” an employee “need show only (1) a definite misrepresentation as to a material fact, (2) a reasonable reliance on the misrepresentation, and (3) a resulting detriment to the party reasonably relying on the misrepresentation.”
According to the Sixth Circuit, Tilley has presented sufficient evidence on all three elements to withstand summary judgment. First, the Road Commission’s handbook stated that “[e]mployees covered under the [FMLA] are full-time employees who have worked for the Road Commission and accumulated 1,250 work hours in the previous 12 months.” There was no mention of the FMLA eligibility requirement that the employee work at a location which has 50 employees within 75 miles. Based on the handbook, Tilly testified that he thought he was covered with FMLA eligible rights. Second, the form was not checked off that he was not an eligible employee. Third, the Road Commission employee sent him the paperwork as if he was eligible for the leave. Finally, the Road Commission, itself, reviewed Tilley’s circumstances, concluded that he was eligible, and twice communicated that conclusion to Tilley.
Based on the totality of the circumstances, the 6th Circuit held that equitable estoppel doctrine applied.
The takeaway for HR in this case is to review the organization’s FMLA policy to ensure it is properly stated, make sure all personnel who deal with FMLA are properly trained, and ensure that FMLA forms are properly filled out. These are simple “to-dos” which, when not done, can have major real-life consequences.
Source: Tilley v. Kalamazoo County Road Commission, No. 14–1679 (6th Circuit Court of Appeals, 1/26/15)