Stites & Harbison, PLLC

A recent court decision highlights the need for employers to take care when responding to an employee's request for leave under the federal Family Medical Leave Act (FMLA). A federal appellate court has made it clear that, even if an employee is not eligible for FMLA leave, an employer can be held liable under the FMLA where the employer mistakenly tells the employee that he or she is eligible for FMLA leave, and the employee reasonably and detrimentally relies on the employer's mistaken representation.

To be eligible for FMLA leave, an employee must have (1) been employed for at least 12 months, (2) worked at least 1,250 hours during the 12 months preceding the requested leave, and (3) been employed at a worksite where there are 50 or more employees within 75 miles. When an employee requests FMLA leave (or when the employer learns that an employee's leave may qualify for FMLA leave), the employer is generally required to notify the employee of his or her eligibility to take FMLA leave within five business days.

In an opinion issued on July 8, 2009 in Dobrowski v. Jay Dee Contractors, Inc., the United States Court of Appeals for the Sixth Circuit (which governs the federal courts in Tennessee and Kentucky), clarified the circumstances under which an employer is barred from contesting an employee's FMLA eligibility. Reasoning that the "employer is more likely to know the precise number of employees and more likely to have access to legal resources to determine the consequences of that number," the Sixth Circuit declared in Dobrowski that an employee is not required to "show that his employer either was aware of the true facts or intended for the statement to be relied on" or otherwise acted in "bad faith" in designating FMLA eligibility. Rather, the 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." In other words, even if an employer innocently or mistakenly advises an employee that he was eligible for FMLA leave, the employer will be barred from raising non-eligibility as a defense in a FMLA case, at least so long as the employee reasonably relies to his detriment on the employer's representation of eligibility.

Nevertheless, the Dobrowski case illustrates that all hope is not lost for employers who make such a mistake in designating eligibility for FMLA leave.

For example, the Sixth Circuit went on in that case to dismiss the employee's FMLA lawsuit and to find no detrimental reliance by the employee, who "had already decided on and scheduled the surgery by the time he was informed of his eligibility" and never alleged "that he would have foregone the surgery but for his belief that his job status was protected by the FMLA." The Court in Dobrowski also cited with approval a prior decision in which the Court reached a similar result where the employee "could not show her reliance was reasonable" because "she knew of her ineligibility."

Of course, if employers will just take a little more time and care on the front end and consult their employment lawyer when making questionable FMLA eligibility determinations, they will likely save a lot more attorney's fees and expenses on the back end.

Click here for a complete copy of the Sixth Circuit's opinion in Dobrowski v. Jay Dee Contractors, Inc.

Stephen Price is co-chair of the firm's Employment Law Service Group and an active member of the Business Litigation and Intellectual Property Service Groups. His practice focuses on commercial litigation, employment law and intellectual property litigation.