Hello mike4327-ga,
Here are the cases in which I found the employer had failed to
adequately inform the employee of their FMLA rights or eligibility.
If you have any questions about the information I have provided,
please feel free to request a clarification.
Best of luck to you,
chellphill-ga
Cases regarding FMLA:
http://www.littler.com/nwsltr/asap_fmla_eligib.html
Recent Cases Underscore the Need to Avoid Hasty Decisions About an
Employee's Eligibility for FMLA Leave
"The DOL has taken the position that an ineligible employee is
eligible for FMLA leave if the employer fails to comply with stringent
notice requirements set forth in the regulations. For example, the
regulations state that an employer who mistakenly confirms an
ineligible employee's eligibility "may not subsequently challenge the
employee's eligibility." 29 C.F.R. § 825.110(d). Likewise, if an
employee notifies his or her employer of the need for FMLA leave
before he or she is eligible for FMLA leave, the employee may be
deemed eligible if the employer fails to timely advise the employee of
his or her ineligibility for FMLA prior to the date the requested
leave is scheduled to commence. Id."
http://www.lfhc.com/may_fmla.cfm
"Accordingly, the 2nd Circuit held that the technician could be
considered eligible for leave under the FMLA. Furthermore, because the
clinic had failed to post the required notice informing employees of
their FMLA rights, the clinic could be barred from claiming she was
ineligible. The court noted that if the technician had been aware of
her FMLA rights, she could have delayed her surgery until after she
had worked the required number of hours."
http://www.pepperlaw.com/pepper/publications_update.cfm?rid=461.0
"Conoshenti highlights the importance of complying with the FMLA
notice provisions at the commencement of an individual?s family leave.
The FMLA requires that employers provide employees with individualized
notice of their FMLA rights and obligations. For example, each time
the employee requests leave, the employer must, within a reasonable
time, provide the employee with written notice detailing the specific
expectations and obligations of the employee and explaining any
consequences for failure to meet those obligations. This notice must
include, among other things, whether the leave will be counted against
the employee?s annual FMLA leave entitlement and the employee?s right
to restoration to the same or equivalent position upon return from
leave."
http://www.omm.com/webdata/content/publications/en_12_01.pdf
?In a recent decision that may significantly
expand employer liability under the federal
Family and Medical Leave Act (the ?FMLA?),
the Ninth Circuit Court has held that an
employer that does not specify a ?counting
method,? i.e., a method of calculating
employee eligibility for FMLA leave in its
employee handbook, must allow its employees
to use the counting method that is most
beneficial to them.?
?Specifically, the handbook provided
that ?employees are entitled to up to twelve
calendar weeks of unpaid [FMLA] leave within
any twelve month period.? The employer
argued that such language was a clear adoption
of the retroactive ?rolling? method of
calculating available leave.?
?Reversing the district court?s ruling in favor of
the employer, the Ninth Circuit Court rejected
the employer?s argument and found the
handbook language ambiguous, declaring that
it ?does nothing more than parrot the language
of the [FMLA],? and, thus, does not adequately
inform employees of the specific calculation
method chosen by the employer to determine
leave eligibility. Consequently, employees did
not have proper notice of their rights under the
FMLA.?
Other things that may be of interest to you:
http://www.nixonpeabody.com/linked_media/publications/ELA_12012004.pdf
The Sixth Circuit?s ruling creates confusion for employers. Suddenly,
there is a special category of paid non-work time that, in addition to
hours worked, can be counted to determine FMLA eligibility.
http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_825/29CFR825.110.htm
(c) Whether an employee has worked the minimum 1,250 hours of
service is determined according to the principles established under the
Fair Labor Standards Act (FLSA) for determining compensable hours of
work (see 29 CFR Part 785
http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_785/toc.htm).
The determining factor is the number of hours an employee has worked
for the employer
within the meaning of the FLSA. The determination is not limited by
methods of recordkeeping,
or by compensation agreements that do not accurately reflect all of the
hours an employee has worked for or been in service to the employer. Any
accurate accounting of actual hours worked under FLSA's principles may
be used. In the event an employer does not maintain an accurate record
of hours worked by an employee, including for employees who are exempt
from FLSA's requirement that a record be kept of their hours worked
(e.g., bona fide executive, administrative, and professional employees
as defined in FLSA Regulations, 29 CFR Part 541), the employer has the
burden of showing that the employee has not worked the requisite hours.
In the event the employer is unable to meet this burden the employee is
deemed to have met this test. See also Sec. 825.500(f). For this
purpose, full-time teachers (see Sec. 825.800 for definition) of an
elementary or secondary school system, or institution of higher
education, or other educational establishment or institution are deemed
to meet the 1,250 hour test. An employer must be able to clearly
demonstrate that such an employee did not work 1,250 hours during the
previous 12 months in order to claim that the employee is not
``eligible'' for FMLA leave.
(d) The determinations of whether an employee has worked for the
employer for at least 1,250 hours in the past 12 months and has been
employed by the employer for a total of at least 12 months must be made
as of the date leave commences. If an employee notifies the employer of
need for FMLA leave before the employee meets these eligibility
criteria, the employer must either confirm the employee's eligibility
based upon a projection that the employee will be eligible on the date
leave would commence or must advise the employee when the eligibility
requirement is met. If the employer confirms eligibility at the time the
notice for leave is received, the employer may not subsequently
challenge the employee's eligibility. In the latter case, if the
employer does not advise the employee whether the employee is eligible
as soon as practicable (i.e., two business days absent extenuating
circumstances) after the date employee eligibility is determined, the
employee will have satisfied the notice requirements and the notice of
leave is considered current and outstanding until the employer does
advise. If the employer fails to advise the employee whether the
employee is eligible prior to the date the requested leave is to
commence, the employee will be deemed eligible. The employer may not,
then, deny the leave. Where the employee does not give notice of the
need for leave more than two business days prior to commencing leave,
the employee will be deemed to be eligible if
the employer fails to advise the employee that the employee is not
eligible within two business days of receiving the employee's notice.
http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_825/29CFR825.300.htm
(a) Every employer covered by the FMLA is required to post and keep
posted on its premises, in conspicuous places where employees are
employed, whether or not it has any ``eligible'' employees, a notice
explaining the Act's provisions and providing information concerning the
procedures for filing complaints of violations of the Act with the Wage
and Hour Division. The notice must be posted prominently where it can be
readily seen by employees and applicants for employment. Employers may
duplicate the text of the notice contained in Appendix C of this part,
or copies of the required notice may be obtained from local offices of
the Wage and Hour Division. The poster and the text must be large enough
to be easily read and contain fully legible text.
(b) An employer that willfully violates the posting requirement may
be assessed a civil money penalty by the Wage and Hour Division not to
exceed $100 for each separate offense. Furthermore, an employer that
fails to post the required notice cannot take any adverse action against
an employee, including denying FMLA leave, for failing to furnish the
employer with advance notice of a need to take FMLA leave.
Major employee notifications an employer is required to make in
various circumstances under FMLA
http://www.dol.gov/elaws/esa/fmla/fmlaen.asp
Information on how to file a complaint and details on potential remedies
http://www.dol.gov/elaws/esa/fmla/fc.asp
http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_825/29CFR825.401.htm |
