FMLA Leave, Quirky Question # 7

Quirky Question # 7:

Several years ago we employed an individual at our auto dealership.  He resigned voluntarily.  About eight months ago, we rehired him.  During the course of the last eight months, he has worked more than 1250 hours.  He recently injured his back at home and has missed 13 days of work.  Because we cannot afford to have an employee miss that much time, we fired him.

He’s now claiming that we violated the Family and Medical Leave Act (FMLA) and is threatening a lawsuit.  We realize that he has met the 1250 hours requirement under the FMLA but he did not work for us for 12 months, another FMLA requirement.  Should we tell him to pound sand, and then lawyer-up in case he sues?  Will our lawyers be able to obtain sanctions if he pursues this bogus claim?

Dorsey’s Analysis:

Not so fast!

Believe it or don’t, your discharged employee’s prior employment with your company, even though it was several years ago, enables him to meet the requirements of the federal Family Medical Leave Act (FMLA).  As you noted correctly, that statute comes into play when the employee has worked at least 1250 hours and has been employed for at least a 12-month period.

At the end of 2006, the federal Court of Appeals for the First Circuit explored what the 12-month requirement means. (Take a look at the case of Rucker v. Lee Holding Co., d/b/a Lee Auto Malls, No. 06-1633 (1st Cir. December 18, 2006).) In that decision, the First Circuit held that the FMLA was “ambiguous as to whether previous periods of employment count toward the 12-month requirement . . .” (Emphasis added.)

In the case of first impression (i.e., the court had not previously analyzed and decided this issue), the appellate court held that a five-year gap in an employee’s employment with the same employer did NOT prevent him from satisfying the FMLA’s 12-month requirement. The court found that both the statutory language and the language of the Department of Labor regulations were susceptible of differing interpretations. In the Rucker decision, the court decided to give that language an expansive reading that benefited the discharged employee.

While I recognzie the statutory and regulatory language are less than perfectly clear, I thought the Rucker decision was a stretch. The analysis simply did not seem like a common sense interpretation of the statute. Silly me! In 2007, there have been two decisions that make Rucker seem eminently reasonable. In O’Connor v. Busch’s Inc., 492 F. Supp.2d 736 (E.D. Mich. 2007), the federal district court adopted the Rucker analysis, applying it to a fact pattern where there was a 20-year gap between the employee’s initial employment for the company and her rehiring. After working for the company in the 1980s, the employee left her employment. She was rehired in 2005 as the VP of Finance. Later the same year, she was injured in an automobile accident. Suffering from headaches and depression as a result of her accident-related injuries, she requested time off. Although the company advised her that it would provide her time off after the end of the year reconciliation of the company’s books, this proposal was not satisfactory to the employee, leading to her resignation. The employee then sued under the FMLA.

In the words of the modern day philosopher, Ferris Bueller, the court “bought it,” even while paying lip service to the notion that it was “troubled by the potential consequences of permitting Plaintiff . . . to combine periods of employment separated by nearly twenty years.”

Similarly, in the case of Thomas vs. Mercy Memorial Health Center, Inc., 2007 WL 2493095 (Aug. 29, 2007, E.D. Okla.), the employee had worked for the defendant-employer’s predecessor company in 1991, 1992 and 1994. She also worked for defendant in 2002 and early 2003. She returned to work in April 2004 but only worked for about eight months before she was fired for absenteeism relating to her own and her husband’s health problems. The district court combined the prior periods of employment, concluding that the employee had worked for more than 12 months and therefore was FMLA eligible.

In light of these cases, telling your employee to “pound sand” would likely be imprudent. Although it is counter-intuitive, your former employee seemingly has a legitimate claim. So, while I generally endorse the idea of “lawyering-up,” in this instance your resources may be better spent trying to resolve your differences with your ex-employee on an amicable basis.

As for “sanctions,” not this time.

Dorsey & Whitney

Dorsey & Whitney

Dorsey is a business law firm, applying a business perspective to clients' needs. We make it our first priority to know the context in which you do business - your market, your competitors, your industry.

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