Don't lose an FMLA regulations battle because you're not up-to-date on FMLA guidelines

by on January 14, 2010 · 37 Comments POSTED IN: HR Info Center

A headcount can defeat you if you get in trouble with FMLA guidelines. That’s the message of a recent court case in Kansas.

An employee sued her employer for violating her FMLA rights when she asked for leave following a car accident.

The employer had the ammunition to beat the lawsuit, but due to HR errors, shot blanks in court.

FMLA guidelines win against flawed execution

The firm’s defense was based on the idea that it had fewer than 50 employees, and so wasn’t covered by the FMLA. That’s a correct reading of FMLA regulations.

Where the firm fell down was in proving its point. It said seven of its 50 or 51 employees were actually general partners, and didn’t count, according to FMLA guidelines.

But the court said the way the information was presented left doubts.

First, the office administrator claimed there were 39 employees and seven partners. Then the HR director stepped up and said 39 was wrong, but there were still under 50 employees not counting partners. But she didn’t tell the court which of the folks on her list were partners, and the court declined to guess.

This was a huge black eye for the HR director. But there’s a useful moral for you: FMLA regulations say that general partners, directors and shareholders aren’t employees for FMLA purposes, even if they work around the office like everybody else.

If you’re sued for violations of FMLA regulations and your headcount is around 50, you’ll want to be sure you can rapidly generate proof of the status of such individuals.

Cite: Arvidson v. Wallace, Saunders, No. 05-4025, D. Kan., 2/16/06.

Parent companies and FMLA guidelines

Regardless how many employees your company has at a given site, FMLA regulations state that you’re FMLA-eligible if you have a parent company with 50 employees within a 75-mile radius – the minimum requirement for compliance.

In this case, an employer wrote a letter to an employee who had asked for medical leave. The letter stated that the company was subject to FMLA. It even detailed the FMLA regulations of the employee’s leave.

But later, the employer claimed it wasn’t subject to FMLA because it didn’t have 50 employees within a 75-mile radius, which FMLA guidelines require. Problem is, the employer’s parent company is Sears. And Sears had a lot more than 50 employees within a 75-mile radius.

The case went to Federal District court, where the employer lost its bid for summary judgment. If someone in HR had known about the FMLA regulations surrounding “integrated” and “joint” employers, this legal headache never would have happened.

Source: Lincoln v. Sears, Roebuck & Co., U.S. District Court, District of Minnesota, No. 02-840, 9/17/02.

Do FMLA guidelines count a subsidiary?

“So with my back messed up like this, I’m gonna need that government sick leave,” Arnie Potts said. “You know– FLMA.”

“FMLA,” HR manager Melinda Kazinski corrected. “Family and Medical Leave Act.”

“Yeah,” Arnie asked. “How much time can I take off, anyway? Is it paid?”

“Whoa,” Melinda said. “Not so fast. We can arrange some time off for you, but not the 12 weeks you’d get under FMLA. We’re a small company, and FMLA regulations say we don’t have to offer family medical leave.”

“What?” Arnie said, looking puzzled. “The guys on the shop floor told me anybody can get FMLA.”

“They’re wrong,” Melinda said. “You have to have 50 employees. We’ve got 32, at last count.”

Which head count do FMLA guidelines want?

“Wait,” Arnie said. “If you count the people over at MaxFlow, there’s got to be 100 of us. That means I can get it.”

“I don’t think so,” Melinda said. “I’m 99% percent sure you can’t count MaxFlow’s employees along with ours, as far as FMLA regulations are concerned.

“Why not?” Arnie asked suspiciously.

“Because we’re just a subsidiary of MaxFlow, and we’re not even in the same business,” Melinda said. “They make pipes, and we make drywall.”

“What’s the difference?” Arnie growled. “You’re making excuses so you don’t have to do right by me.”

“Not at all,” Melinda said. “I’m following FMLA guidelines. If you have unused personal days, you can take them while your back is recovering.”

“I only have a week. It’s not enough,” Arnie said. “I’m going to talk to a lawyer.”

Arnie sued for violation of FMLA regulations. Did he win?

The decision

No, Arnie didn’t win.

The court said Melinda was right: The company was small enough that it didn’t have to offer FMLA leave.

FMLA guidelines say that a company must have 50 or more workers at a single site, or within 75 miles of the site, before it’s obliged to follow the FMLA.

But in this case, why didn’t the workers at the parent company and the subsidiary count together toward the 50-employee threshold?

After all, the parent, MaxFlow, was only 20 miles away.

Looking behind the FMLA guidelines

To answer the question, the court looked at the underlying purpose of the exemption for smaller companies.

The idea behind these FMLA regulations is that a small firm won’t have enough people to fill in for those out on FMLA leave. In a case like this one – where a subsidiary is run as a free-standing company – the parent isn’t likely to furnish replacement employees to fill in for the subsidiary’s FMLA absentees.

It’s different when you’re talking about an integrated division of a larger firm, with common administrative functions like HR and payroll.

Then, the employee pool includes the whole company, as long as everybody is less than 75 miles apart.

If you’re uncertain about your situation, ask yourself whether you could count on an associated company to replace people out on FMLA leave.

Cite: Engelhardt v. S.P. Richards Co., No. 06-1232, 1st Cir., 12/22/06. Fictionalized for dramatic effect.

  • gary

    if my father-in-law is having bypass surgery am i able to use fmla for that. he is about 700 miles away. how does that work

  • OzzMan

    Does FMLA rules apply to indivudials who are employed by a U.S. company working over see's for the U.S. Govnment as contractors?

  • Anonymous

    Does FMLA rules apply for peaple (U.S. Citizen) that are working oversea’s for a U.S. based company thats working for the U.S. Government as contractors?

  • angela

    “key employee” what does that mean….my paperwork states that I am not a key employee

  • VANESSA C. BEARD

    how often should and employee be required to update there WH-380-

  • VANESSA C. BEARD

    HOW OFTEN IS AN EMPLOYER REQUIRED TO MAKE AN EMPLOYEE UPDATE THERE WH-380

    • Auntpoo63

      I think FMLA is good for a year but my employer wants the form re-done by the Doctor every 6 months. Is this against the law?

      • rliblogs

        Thanks for your comment. We can't respond to questions about specific
        situations or provide legal advice, but we invite other readers to post
        comments or responses to this question. We encourage you to seek guidance
        from your HR department or, for legal questions, consult an attorney.

  • sherri

    do you get paid for fmla or is it just hours to protect your job

  • liz

    If an ineligible pregnant employee is placed on bed rest and then has the baby a month early, and has been on leave for eight weeks when she becomes FMLA eligble, is the employer required to give her another 12 weeks of leave?

  • Anonymous

    Thanks for your comment. We can’t respond to questions about specific
    situations or provide legal advice, but we invite other readers to post
    comments or responses to this question. We encourage you to seek guidance
    from your HR department or, for legal questions, consult an attorney.

    Michael Boyette
    Executive Editor
    Rapid Learning Institute
    PO Box A
    Morton, PA 19070

    mboyette@rapidlearninginstitute.com
    484-479-2715

  • liz

    If an ineligible pregnant employee is placed on bed rest and then has the baby a month early, and has been on leave for eight weeks when she becomes FMLA eligble, is the employer required to give her another 12 weeks of leave?

    • rliblogs

      Thanks for your comment. We can't respond to questions about specific
      situations or provide legal advice, but we invite other readers to post
      comments or responses to this question. We encourage you to seek guidance
      from your HR department or, for legal questions, consult an attorney.

      Michael Boyette
      Executive Editor
      Rapid Learning Institute
      PO Box A
      Morton, PA 19070

      mboyette@rapidlearninginstitute.com
      484-479-2715

    • HR Generalist

      No.  FML is a total of 12 weeks in a consecutive year 12 mos ( not calendar year).  So if the employee took 8 weeks of leave already, she is entitled to only 4 more weeks. 

  • issa

    I’m a teacher taking six weeks paid leave (my sick days), plus an additional 6 under FMLA for pregnancy. I always have a second job and plan to maintain a second job during the time of my leave. Am I in violation of any regulations???

    • Chava

      I am in the same situation. Did you get an answer to your question about continuing to work at your second job?

  • Anonymous

    Thanks for your comment. We can’t respond to questions about specific
    situations or provide legal advice, but we invite other readers to post
    comments or responses to this question. We encourage you to seek guidance
    from your HR department or, for legal questions, consult an attorney.

  • vacation worried

    I had to be out of work due to back problems and processed all the needed FMLA paperwork and was approved, however my question is although my employer approved the FMLA, I was out for 6 weeks and received the vacation pay, but am I still able to take my vacation in the spring that I have already paid for in September 2010? I can deal being without the vacation pay but it is the time I am worried about.

    • Anonymous

      Thanks for your comment. We can’t respond to questions about specific
      situations or provide legal advice, but we invite other readers to post
      comments or responses to this question. We encourage you to seek guidance
      from your HR department or, for legal questions, consult an attorney.

  • Josh

    I have been employed directly for 10 months, but i worked 6 months as a contractor. can they count this time in order to make for the 12 months required???

    thanks.

    • Anonymous

      Thanks for your comment. We can’t respond to questions about specific
      situations or provide legal advice, but we invite other readers to post
      comments or responses to this question. We encourage you to seek guidance
      from your HR department or, for legal questions, consult an attorney.

  • D54lukens

    I was off work on FMLA for 2 weeks, during that time a job opening was posted for three days and then awarded to an employee. When I returned the Compnay would not let me bid on the job. My Union contract does not address this problem. Under the Act, does the Compnay have to allow me the right to bid on the job? and treat me as if I was at work?

  • Anonymous

    Thanks for your comment. We can’t respond to questions about specific
    situations or provide legal advice, but we invite other readers to post
    comments or responses to this question. We encourage you to seek guidance
    from your HR department or, for legal questions, consult an attorney.

  • Dina

    Are there any exceptions to “job security” If you take fmla on 2 different occasions in the same year?

  • Law2pratice

    can an employer force you to go on a medical leave even if you didn’t ask for one and you have been working there for over two years and had a injury but you continue working full time . in florida what are the laws on telling the associate to go on a medical leave or not to come back.it’s that a termination base on the company higher management

    • Anonymous

      Thanks for your comment. We can’t respond to questions about specific
      situations or provide legal advice, but we invite other readers to post
      comments or responses to this question. We encourage you to seek guidance
      from your HR department or, for legal questions, consult an attorney.

  • Colemanma

    what can be done when a co worker is taking FMLA and it is causing a hard ship on other workers?

  • Vona67

    Is a employe still covered under fmla if there injury lasts longer than 12 weeks and there Dr. Won’t release them to return to work?

  • Vona67

    What if employe was realease to work with restrictions but no restricted jobs at work and the 12 weeks are up is there job still scure?

  • guest

    im told that when i sign up on fmla i lose  my service time

  • Christytanner66

    Can an employer fire you if you have not requested FMLA, but had extenuating circumstances and had to take time off.  Thus leading to FMLA being asked for after a week of absence by employee?

  • jodi

    DO YOU HAVE TO TAKE SICK TIME AND VACATION PAY IF IT IS A PERSON THAT IS SICK NOT YOU

  • Teresa Campos

    If an eligible employee’s parent is suffering from a life threatening illness does the employee qualify if that parent resides outside of the United States?

  • Teresa Campos

    If an eligible employee has a parent with a life threatening illness does it matter that the parent does not live inside the United States.

  • lisa

    Do I have to use sick time for FMLA 

  • Carolyn

    does an employee have to exhaust all vacation, sick, personal leave before getting FMLA?

  • HRBonnie

    What is the time limit you have to get the paperwork to the employee to sign up for FMLA?

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