Employer Alert: FMLA ineligibility no hindrance to FMLA retaliation lawsuit

Friday, April 26, 2013 2:30 pm

clientuploads/Publications/Blog and Article Photos/Employment Agreement.jpgBy Wendy Bryant Becker, Attorney, Bingham Greenebaum Doll LLP

Do you think that your company is safe from lawsuits under the Family and Medical Leave Act (FMLA) if the complaining employee or ex-employee was never eligible for FMLA leave? If so, think again.

When does an employee become eligible for FMLA leave?

The FMLA, broadly speaking, permits eligible employees who work for employers with 50 or more employees to take up to 12 or, in some cases, 26 weeks of unpaid leave per year for qualifying family, medical or military-related reasons. In order to be eligible for FMLA leave, an employee must have (among other things) worked for his or her employer for at least 12 months.

When does an employee become eligible to assert an FMLA claim?

If your company is covered by the FMLA, you might logically assume that employees or ex-employees who did not work for 12 months, and thus never became eligible for FMLA leave, should not be entitled to assert FMLA rights. However, as a very recent Indiana district court case demonstrates, your assumption would not necessarily be correct.

James Morkoetter, who had been employed in Indiana by Sonoco Products Company for about 11 months, told Sonoco of his intention to take FMLA leave after he reached his 12-month anniversary with the company. Before he reached his 12-month anniversary, his employment was terminated. Morkoetter sued Sonoco for FMLA retaliation, alleging that it was his request for leave which led to his termination. Sonoco sought dismissal of his claim based on the incontrovertible fact that he was never an FMLA–eligible employee during his tenure with Sonoco, and should therefore be barred from bringing suit under the Act.

The district court disagreed, pointing to an FMLA regulation stating that the eligibility decision must be made “as of the date the leave is to start.” The court also relied on cases from other jurisdictions noting the “illogic” of allowing an employer to terminate an 11-month employee for requesting leave that he would be eligible for in the foreseeable future, when it would be prohibited from doing the same thing a month later. Based on the regulation and the cases from other courts, the Indiana court held that a pre-eligibility request for post-eligibility leave is protected by the FMLA. Sonoco’s request for dismissal was therefore denied.

Does the Indiana court’s decision apply to employers in other states? Not necessarily. Although some courts, as noted above, have reached the same decision as was reached in Morkoetter, district courts in Tennessee (which, like Kentucky, is within the jurisdiction of the Sixth Circuit Court of Appeals), have reached the opposite conclusion. Only two months before the Morkoetter decision, a district court in Tennessee, relying on general precedent established by the Sixth Circuit Court of Appeals, held that “a prerequisite to asserting an FMLA claim is eligibility, even if an employer retaliates for asserted FMLA rights.” In the Tennessee case, Dunn vs. Chattanooga Publishing Co., just as in Morkoetter, an 11-month employee had indicated a need to take leave the following month, and was subsequently terminated; however, unlike the Indiana court in Morkoetter, the Tennessee court granted the employer’s request for dismissal of the ex-employee’s lawsuit. Since Kentucky, like Tennessee, is within the jurisdiction of the Sixth Circuit, it is likely to assume that a Kentucky district court would decide a similar case in the same manner as Tennessee did.

How should an employer move forward with these cases in mind?

For now, the courts are split on this issue, and the outcome in future cases is uncertain. While it is likely that Kentucky courts considering this issue in the future will take the more employer-friendly approach of Dunn, and that the Indiana courts considering the issue will take the less employer-friendly approach of Morkoetter, this is far from certain. The safest approach for your company, if it is covered by the FMLA, is to assume that employees who make pre-eligibility requests for post-eligibility FMLA leave enjoy the same protection from retaliation as those who make leave requests after having reached eligibility. Thus, before taking any adverse action against an employee who has indicated an intent to take FMLA leave — no matter when the request is made — you should carefully consider the possibility of an FMLA interference or retaliation claim, and seek legal advice as needed.

If you or your company has questions about FMLA eligibility or related lawsuits, please contact the Labor and Employment group at Bingham Greenebaum Doll LLP.

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