Employers should review their FMLA policies to ensure they are legally
compliant and clearly drafted. A recent unpublished Third Circuit decision
provides a cautionary tale of what can happen when an employer has a poorly
drafted FMLA policy. In
Palan v. Inovio Pharmaceuticals Inc., the employer was not required by statute to provide FMLA leave to the
plaintiff because it employed fewer than 50 employees at or within a 75-mile
radius of the plaintiff’s worksite. However, the court held that
a statement in the employer’s handbook that its family leave policy
“complies with the provisions of the [FMLA]:”
- Indicated that the employer voluntarily offered FMLA leave to the plaintiff
even though it was not required to do so.
- Was likely to mislead an employee to believe that he was an eligible employee
for FMLA purposes.
- Could form the basis of an equitable estoppel claim, which prevents an
employer from denying an employee’s eligibility as a defense to
an FMLA claim.
The plaintiff’s claim ultimately failed because he was unable to
prove detrimental reliance on the misrepresentation. Still, the employer
engaged in costly litigation to defend a claim that that could have been
avoided by having a well-drafted FMLA policy that made eligibility requirements
clear and did not inadvertently suggest a more generous leave policy than
required by the FMLA.
Other circuits have recognized an equitable estoppel theory in the FMLA
context based on:
- A statement in an employee handbook that “[e]mployees covered under
the [FMLA] are full-time employees who have worked for the [employer]
and accumulated 1,250 work hours in the previous 12 months,” without
qualifying this statement by adding that employees would only be covered
by the FMLA if they worked at or within 75 miles of a worksite with at
least 50 employees.
- An employer’s statement in a written memorandum that the plaintiff,
who did not work at or within 75 miles of a worksite with at least 50
employees, was an “eligible employee” under the FMLA in response
to the plaintiff’s request for leave.
These cases highlight the importance of:
- Maintaining a complete understanding of FMLA legal requirements.
- Drafting an FMLA policy that clearly defines both the leave offered by
the employer and an employee’s eligibility for it.
- Periodically reviewing the number of employees at different worksites and
determining how this affects FMLA eligibility.
- Training managers and human resource representatives on how to follow FMLA
policies and procedures to avoid misrepresentations about an employee’s
Need a Florida business litigation attorney?
Contact Rosenthal Law Group for a consultation and review of your FMLA policy.