Employment Law Daily For telecommuter, FMLA’s 50-employee threshold measured by office to which she reported
Thursday, June 23, 2016

For telecommuter, FMLA’s 50-employee threshold measured by office to which she reported

By Dave Strausfeld, J.D. The FMLA’s 50-employee threshold was met if a telecommuting employee in Louisiana reported to an office in Florida that had at least 50 employees, held a federal district court in Louisiana. In other words, her "worksite" for purposes of counting employees to meet the numerical threshold was the office to which she reported, the court found, denying summary judgment on her FMLA claim. But she could not proceed with her claim under the Louisiana Employment Discrimination Law because that statute excludes employers with fewer than 20 employees in Louisiana, and the company undisputedly had no more than four employees in the state (Donahoe-Bohne v. Brinkmann Instruments, June 15, 2016, Feldman, M.). Out-of-state telecommuter. In a telephone meeting with the HR director, the 58-year-old technical support phone representative was informed that, after almost two decades of employment, she was being terminated because she lacked troubleshooting skills. During their conversation, the HR director allegedly referenced the employee’s personal and family health issues, stating that she had not been reliable over the past two-and-a-half-months. (The employee’s husband had recently had a slip and fall accident that required two surgeries.) The employee brought suit for discrimination and violation of the FMLA. In its motion for summary judgment, the company argued she was not an eligible employee under the FMLA because the company did not have at least 50 employees at or near her worksite. DOL regulations on "worksite." Under the FMLA, "eligible employee" does not include any employee who is employed at a "worksite" at which the employer employs fewer than 50 employees; the statute also considers how many individuals the employer employs within a 75-mile radius of the "worksite." For present purposes, the crucial concept was "worksite." DOL regulations defining the term clarify that for employees "who work at home, as under the concept of flexiplace or telecommuting," the worksite is not their personal residence. "Rather, their worksite is the office to which they report and from which assignments are made." Threshold was met. Thus, the numerical threshold in this case was to be assessed based on the office to which the employee reported. In her affidavit, she attested that she worked "offsite and from home" through telecommunication and reported to the Tampa, Florida corporate office, which "has more than 50 employees." Because her affidavit raised a genuine factual dispute as to whether she was an eligible employee under the FMLA, the court denied summary judgment to her employer on her FMLA claim. Louisiana Employment Discrimination Law. The employer fared better on the employee’s claim under the Louisiana Employment Discrimination Law, though, because that statute applies only to an employer who employs 20 or more employees within the state. According to an uncontested affidavit from the company’s HR director, the company had no more than four employees in Louisiana during the relevant time period, so the employer was entitled to summary judgment on the employee’s state-law claim.

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