Employee Handbook Mistakes: FMLA Case Offers Important Lessons

120px-L-13-02-05-C-495A recent 6th Circuit Court of Appeals case provides employers with important lessons when it comes to employee handbook policies, in particular their family and medical leave policy. Employees are eligible for leave under the federal Family and Medical Leave Act (FMLA) if they have:

•    Worked for a covered employer for at least 12 months;
•    Worked at least 1,250 hours during those 12 months; and
•    Work at a location where at least 50 employees are employed at that location or within 75 miles.

Employers should be sure to include all of these eligibility requirements in their family and medical leave policy or suffer the consequences.

In Tilley v. Kalamazoo Road Commission, the employer informed Tilley that if he failed to timely turn in his next assignment he would be terminated. On the morning the assignment was due, Tilley felt heart attack symptoms and went to the hospital. His wife called the employer to inform them that Tilley would be out of work for three more days.

The employer sent Tilley paperwork notifying him that he would be eligible for leave under the FMLA. A few days later, the employer terminated Tilley for failure to timely turn in his assignment. Tilley claimed his employer had interfered with his FMLA rights and retaliated against him for taking FMLA leave.

The federal district court ruled for the employer, finding Tilley was ineligible for FMLA leave because he did not work at a location where his employer employed 50 or more employees within a 75-mile radius (50/75 requirement).

However, the 6th Circuit disagreed. The appeals court noted that the employer’s family and medical leave policy did not include the 50/75 requirement (it only included the 12 month, 1,250 hour requirements). The 6th circuit held that the employer could not rely on the 50/75 requirement after the fact. The court reasoned that this clear misrepresentation as to Tilley’s eligibility to apply for FMLA benefits doomed any defense the employer had against Tilley’s claim.

This ruling serves is a reminder to keep the following tips in mind with respect to family and medical leave policies:

1. It is essential to have a policy that is accurate and legally compliant.

As this employer learned, it is not only crucial to have a policy but to make sure the policy is correct and complies with the law. By omitting a key part of the FMLA eligibility clause, the employer rendered its policy inaccurate and misleading. To ensure compliance, it is best practice to consult with legal counsel especially since FMLA and leave requirements are continually evolving.

2. Remember to keep your policies current and up to date.

An employer also should ensure that its employee handbook policies are fully up to date. For example, there have been numerous changes to the FMLA in recent years including the addition of military family leave and the extension of FMLA benefits to same-sex spouses residing in states recognizing same-sex marriage. These changes must be taken into account.

3. Be careful about making any representations beyond the policy.

An employer needs to be particularly careful about making any representations which would lead employees to believe that they have greater rights than they actually have, unless the employer wants to provide greater rights (which they are entitled to do). As the 6th Circuit held, statements made to employees about their FMLA eligibility may be binding, even if the employees do not meet the eligibility criteria required by the law.

4. Proofread the employee handbook and all policies.

It is critical for the employee handbook to be reviewed and proofread by various members in the organization including upper management, HR and legal counsel.  With careful proofreading, the above employer may have avoided this situation altogether.

Need help developing a legally compliant employee handbook and keeping it current?  XpertHR has developed a 50-state Employee Handbooks tool that is authored by attorneys at Littler Mendelson, the largest US law firm exclusively representing management in labor and employment law. This resource covers leave laws on the federal level, in all 50 states and key municipalities, as well as other issues affecting the workplace.

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