By Karen L. Piper
The federal appeals courts, including the Sixth Circuit Court of Appeals covering Michigan, are requiring strict compliance with Family and Medical Leave Act (FMLA) notice requirements. Four weeks ago, we presented an article entitled “Be Extra Meticulous in FMLA Documentation,” about a Sixth Circuit case which reinstated an employee’s FMLA claim because the employer’s notice did not specifically identify what information the employee was required to provide in support of his request for leave. Pearson v Cuyahoga County, Case No. 14-3197 (unpublished, 12/30/2014). This article involves the Sixth
Circuit’s reinstatement of an employee’s FMLA claim because the employer’s handbook
statement indicated that an employee was eligible for FMLA leave when he wasn’t. Tilley v Kalamazoo Cnty Road Comm’n (No. 14-1679, 1/26/2015).
Tilley worked for the Kalamazoo County Road Commission. After 15 years on the job,
Tilley began reporting to the Commission’s general superintendent. Shortly thereafter, Tilley was reprimanded several times by his new supervisor for failing to complete assignments. On July 20, Tilley was given a final written warning and directed to complete three assignments by August 1. Tilley turned in two assignments. He reportedly was working on the third assignment on August 1, when he experienced symptoms that made him fear he was having a heart attack. A co-worker drove him to the hospital. Tilley was admitted overnight for observation. He was released from the hospital the following day, but not released to return to work until the following week. Tilley turned in the third assignment the day after he returned to work, on August 9. That same day, Tilley received from Human Resources a “Notice of Eligibility and Rights and Responsibilities.” The cover letter, and the form, both stated that Tilley was eligible for FMLA leave. Tilley was discharged on August 12 for missing the assignment deadline.
Tilley sued, claiming violation of the FMLA, among other claims. The district court dismissed the claim because Tilley did not meet the FMLA’s eligibility requirements. The Sixth Circuit ruled that the Road Commission might be precluded from asserting that Tilley was not eligible for FMLA leave if: a) the Road Commission definitely misrepresented information regarding Tilley’s eligibility; b) Tilley relied on the misrepresentation; and c) Tilley could show he was harmed by his reliance.
The FMLA has three requirements for eligibility: (1) the employee must have been employed by the employer for 12 months before leave is scheduled to commence; (2) the employee must have worked at least 1,250 hours in the 12 months immediately preceding commencement of leave; and (3) the employer must employ at least 50 employees at or within 75 miles of the employee’s workplace at the time leave is to commence.
The Road Commission did not employ 50 employees within 75 miles of Tilley’s work site, so Tilley was not eligible for leave under the Family and Medical Leave Act. However, the Road Commission’s employee handbook did not include the “50/75-Employee Threshold”
requirement of FMLA eligibility. The handbook said only that employees were covered under the FMLA if the employee was full-time, and had “worked for the Road Commission and accumulated 1250 work hours in the previous 12 months.” The Sixth Circuit ruled that the Road Commission’s omission of the 50/75-Employee Threshold was a definite misrepresentation.
In support of his claim of reliance, Tilley provided a sworn affidavit in which he stated that he was aware of the handbook statement and believed on August 1 that he was eligible for FMLA leave. He further claimed that, if he had known on August 1 that he was not entitled to FMLA leave, he would have completed the third assignment, or made other arrangements to have the assignment submitted, by the deadline. The Sixth Circuit acknowledged that there were “obvious reasons to doubt the veracity of Tilley’s assertion
that in the face of a suspected heart attack he would have remained at work to complete the then-due assignment” (Slip Op., p. 15), but ruled that Tilley’s affidavit met his burden of showing that he relied on the handbook statement.
The Sixth Circuit observed that Tilley’s reliance on the handbook statement was reasonable. Though Tilley could not have relied on the “Notice of Eligibility and Rights and Responsibilities” form and cover letter that he received on August 9, the court noted that these documents “illustrate the reasonableness of Tilley’s conclusion that he was eligible.” (Slip Op., p. 16, n.7).
Tilley’s affidavit also supported the third element of his claim – that he was harmed by his reliance. Tilley was discharged for missing the assignment deadline. Tilley’s affidavit stated that he would not have missed the deadline, but-for his reliance on the handbook statement indicating that he was eligible for FMLA leave. This statement was sufficient evidence of harm due to reliance to preclude dismissal of Tilley’s claim.
Once again the Sixth Circuit has reinstated an employee’s FMLA claim because the employer’s FMLA paperwork was not 100% accurate. Especially in discharge situations, it is prudent for employers to review facts and circumstances with experienced counsel, such as the author, before discharging an employee who has recently exercised FMLA rights.
This article was written by Karen L. Piper, who is Secretary of the Board of Detroit SHRM, a member of the Legal Affairs Committee, and a Member of the law firm of Bodman PLC, located in its Troy MI office. She can be reached at (248) 743-6025 or
Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. February 2015.