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How to Give Your Employees FMLA Rights That the Law Does Not Confer

How to Give Your Employees FMLA Rights That the Law Does Not Confer

Posted by Frank Steinberg | Feb 04, 2015 | 0 Comments

We harp constantly at our business clients to keep their employee handbooks short and simple. There are dangers to saying more than you should.  The KISS rule (Keep It Simple, Stupid) should be the default position when it comes to handbooks and policies.

A case in point: Tilley v. Kalamazoo County Road Commission, recently decided by the United States Court of Appeals for the Sixth Circuit.  The court found that Kalamazoo, the employer, could not legally deny that it had created Family & Medical Leave Act [FMLA] rights in its employee Tilley, despite the fact that Kalamazoo did not have enough employees to be subject to the FMLA.  Here's how.  

Tilley showed that the Road Commission's Personnel Manual (the “Manual”) contained a clear misrepresentation as to his eligibility to apply for FMLA benefits. The Manual, which told employees that it served as “a guide to basic benefits, working conditions and policies” of the Road Commission, stated, in relevant part: “Employees covered under the Family and Medical Leave Act are full-time employees who have worked for the Road Commission and accumulated 1,250 work hours in the previous 12 months.” 

Wrong.  The handbook omitted the important qualification in the law that it applies only to employees who  worked at, or within 75 miles of, a site at which Kalamazoo employed at least 50 employees.  That was not the situation here, and if the law had been applied as written, Tilley would have had no FMLA rights.  And so the court found:

This is an unambiguous and unqualified statement that [Kalamazoo] Road Commission employees, like Tilley, who have logged 1,250 hours in the year before seeking FMLA leave are covered by the FMLA and are eligible to apply for FMLA benefits.

Note the emphases in the court's language : “are covered by the FMLA and are eligible to apply for FMLA benefits.” Once Tilley sued, it was too late for the employer to deny that it had conferred FMLA rights on him, and Kalamazoo could not assert non-coverage of the FMLA as a defense to Tilley's lawsuit. “Simply put, a reasonable person in Tilley's position could fairly have believed that he was protected by the FMLA.”

The Employer Law Report has a good analysis of the specific issue.

Our point is more general. Resist the temptation to say more than you should.  That way you can better avoid giving away things unintentionally, and avoid the upset and expense that comes with the unhappy discovery that you did it to yourself.

About the Author

Frank Steinberg

Frank is the founder and principal of Steinberg Law, LLC. A Jersey boy born and bred, he focuses on employment litigation and counseling, business litigation,  and aviation law. Following law school and a clerkship in the federal district court Frank spent his early career with large litigation ...


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