The Laconic Law Blog

Workplace Prof Blog has an interesting post here on a case from the U.S. Court of Appeals for the Seventh Circuit affirming the dismissal of an FMLA case on summary judgment because the employee had only worked 1249.8 hours during the preceeding twelve months.  In other words, the plaintiff missed FMLA eligibility by 12 minutes.  From a practical standpoint, this is one good reason to maintain accurate records of employee leave.

In an unpublished decision dated August 15, 2008, the U.S. Court of Appeals reversed the award of summary judgment to an employer in an FMLA case.  The decision in Krenzke v. Alexandria Motors Cars is here.  The case provides a good overview of the issue of what constitutes adequate notice by the employee of a need for FMLA leave and also on what can satisfy the “continuing treatment” test for a “serious health condition.”

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An employee takes FMLA leave.  The day after the leave starts, he receives a letter from his employer advising him of his FMLA rights.  The language of the letter tracks the employer’s FMLA policy, which provides that any employee with at least 12 months of service and 1,250 hours of work within the prior 12-month period is eligible for FMLA leave.  The letter included a return to work date by which the employee had to return in order to retain his position with the company.  The employee returns from leave.  Shortly thereafter, he begins a second FMLA leave.  The employer sends another letter with similar language and includes an incorrect return date.  After the incorrect return date, but before the correct return date, the employer hired a replacement.  The employee declined an alternate position and brought suit under the FMLA and for promissory estoppel under state law.

Before the district court, the employer argued that the plaintiff was not an eligible employee because he worked at a facility with less than 50 employees within 75 miles of the facility.  The district court agreed, and dismissed the lawsuit.  The employee appealed.  What is the outcome of the appeal?

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The U.S. Court of Appeals for the Sixth Circuit recently issued a ruling with respect to the liability of joint employers under the FMLA.  The case is Grace v. USCAR and the opinion can be found here.  The case has implications for staffing firms and those who use them. 

The case is particularly interesting because it found that a secondary employer — i.e. the company using the staffing firm’s employees — can be liable under the FMLA even if it does not independently meet the requirements for FMLA coverage (i.e. having 50 or more employees).  It is also interesting because the employer lost a pretrial motion for summary judgment, in part, because of notes from a meeting where the elimination of her position was discussed, and the question was raised “can the lawyers construct a way to make it [her termination] doable?”

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The New Jersey legislature has enacted a paid family leave act as part of the State’s temporary disability benefits law, joining California and Washington as the third state to do so.  The most recent version of the bill is here, which passed on April 7, 2008.

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A Georgia jury has returned a $2.2 million verdict in an FMLA case to a former regional manager of Chase Manhattan Mortgage Corp.  Law.com has the story here.  The FMLA Blog also has commentary on the case here.  The total damages could ultimately be much higher after consideration of liquidated damages, interest and attorneys’ fees.

The Manpower Employment Law Blawg has an update on the new FMLA poster insert that contains new information required to be posted.  It also has links to the Department of Labor website with helpful information on the amendments to the FMLA that require this new posting.

President Bush has signed legislation amending the FMLA that will permit a “spouse, son, daughter, parent, or next of kin” to take up to 26 workweeks of leave to care for a “member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness.”  The amendments also provide leave to family members for service members called up for “contingency operations.”

Information on the amendment is posted here on the DOL web site.  The full text of the FMLA with the amended portions highlighted in bold italics can be found here.

According to The FMLA Blog, the DOL has confirmed that the amendments are effective immediately.  New regulations applying the amendments are expected.

According to SCOTUS blog, the U.S. Supreme Court has asked for the government’s view on the waiver of FMLA claims in the case decided by the Fourth Circuit, Progress Energy v. Taylor.

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According to Workplace Prof Blog there will be no new FMLA regulations anytime soon.  WPB tenders a prediction that a Democratic administration in 2008 might result in paid leave provisions being added to the FMLA.  On the other hand, employers and other groups such as the Heritage Foundation, advocate for changes in the regulations with respect to medical certification and intermittent leave.

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