Employment Law Daily Employer can assert FMLA minimum-employee defense even though it told employee she was covered
Wednesday, February 17, 2016

Employer can assert FMLA minimum-employee defense even though it told employee she was covered

By Dave Strausfeld, J.D. An employer was not equitably estopped from asserting that it had fewer than 50 employees even though the company controller had falsely told an employee that she was covered by the FMLA, held a federal district court in Ohio, dismissing the employee’s FMLA retaliation claim on summary judgment. Equitable estoppel did not apply because the employee did not rely to her detriment on the controller’s representation, in that she would have taken leave for surgery anyway (Weissberg v. Chalfant Manufacturing Co., February 11, 2016, Lioi, S.). False assurance of eligibility. Before the employee took medical leave for surgery that her doctor said could not be delayed, she spoke with the company controller and allegedly received assurances that her job as an RPG computer programmer was protected under the FMLA. But when she returned to work several months later after recovering from her operation, the company president told her that her job had been eliminated as a result of the company’s conversion to a new type of computer system. She then sued under the FMLA, even though it was undisputed that the company did not meet the 50-employee threshold for FMLA coverage. Circuit precedent. The Sixth Circuit has recognized that even though an employee is not actually eligible for FMLA coverage, he or she can nonetheless proceed with an FMLA claim by first establishing that the company is equitably estopped from asserting the ineligibility defense. In fact, the Sixth Circuit has addressed factual situations resembling the present case on several occasions, including in Dobrowski v. Jay Dee Contractors, Inc., decided in 2009. There, the court of appeals concluded that the employee could not show he detrimentally relied on the misstatement as to his FMLA eligibility, especially when he had not even submitted an affidavit explaining what he would have done differently had he known he was ineligible. On the other hand, in a 2015 case, Tilley v. Kalamazoo County Road Commission, an employee fared better because he made certain to supply an affidavit showing exactly how he detrimentally relied on his belief that he was FMLA-eligible. No estoppel here. Here, the employee did not provide any evidence of detrimental reliance, so her equitable estoppel argument failed. She did not file an affidavit or even allege she would have foregone surgery had she known her job was not protected by the FMLA. At her deposition, she testified that the surgery “wasn’t an if/or.” This could have been fatal to me.” In other words, she would have taken leave in any event, even if she knew it would not be FMLA-protected leave. Because of this, she could not establish that she detrimentally relied on the controller’s alleged statement about her FMLA eligibility, and the employer was not equitably estopped from asserting that it did not meet the minimum-employee threshold for FMLA coverage. No causation either. The employee’s claim had an additional flaw: she was aware long before she began her medical leave that the company was phasing out its old computer system and installing a different type of system, and thus would no longer need an RPG computer programmer. Consequently, she could not show any causal connection between her FMLA leave and her termination.

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