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Employment Law Alert: First Circuit Says Employee’s Five-Year Break In Service

On December 18, the First Circuit Court of Appeals issued a decision in an FMLA case holding that, although the plaintiff had a five-year break in service, he was still eligible for FMLA leave, and could proceed with his claim that he was terminated in violation of the statute.

Kenneth Rucker, a car salesman, had been employed by Lee Auto Malls for approximately five years when he left and went to work elsewhere for another five years. He eventually returned to work for Lee and had worked there approximately 6 months when he ruptured a disc in his back and missed 13 days of work. After Lee terminated Rucker’s employment while he was off work on medical leave, Rucker sued under the FMLA. Lee filed a motion to dismiss the complaint, arguing that Rucker was not eligible for FMLA leave at the time he was terminated, because his prior service did not count toward the 12-month service requirement. The District Court agreed, and dismissed the complaint. However, on appeal, the First Circuit reversed the dismissal and held that Rucker could proceed with his claim. In so doing, the Court relied upon 29 C.F.R. § 825.110(b), which says that the 12 months of service need not be consecutive months. Accordingly, because Rucker had satisfied the 1,250 hours requirement during his most recent stint of employment with Lee, and had unquestionably worked more than 12 months total for the company, he was an eligible employee under the FMLA.

Bottom Line

While this case presents an unusual fact pattern, and may seem to be wrongly decided from a common sense standpoint, the cited regulation supports the result.

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