FMLA guidelines say you have to have 50 employees, but all workers are not employees

Don’t let headcount needlessly 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 FMLA eligibility errors, shot blanks in court.

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 the law.

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 toward the FMLA eligibility floor. But the court said the way the info 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: 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 under the FMLA 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.

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