Although many employers know the Family and Medical Leave Act’s basic requirements, unusual circumstances can trip up even the most savvy. We’ll look at two recent cases involving your duty to inform employees of their leave rights and the importance of determining an employee’s “worksite” for FMLA purposes.
No FMLA Notice for Injured Employee
Richard Conoshenti, a Public Service Electric and Gas Company (PSE) employee in New Jersey, was accused of keeping inaccurate time records and leaving his shift early. PSE gave him a “last chance agreement” that allowed him to keep his job if he met certain conditions, including regular attendance.
Conoshenti kept up his end of the bargain. But a few months later, while off duty, he was hit by a car and seriously injured. He asked for two weeks off to recover, but was ultimately out for more than four months. PSE never notified Conoshenti of his FMLA rights or that FMLA leave was available for up to 12 weeks. The day Conoshenti returned to work, he was terminated for violating the attendance provisions of the last chance agreement.
Leave Too Long but Case Allowed to Proceed
Conoshenti sued, alleging that PSE violated the FMLA by not notifying him of his family leave rights, and now a federal appeal court has ruled that his case can go to a jury.1 Even though Conoshenti was out longer than 12 weeks, PSE’s failure to advise him of his FMLA rights interfered with his exercise of those rights. The court found viable Conoshenti’s argument that had he been properly advised of his FMLA rights, he could have made an informed decision about structuring his leave in a way that preserved his job.
Different “Worksite” May Have Applied
In another recent FMLA case, Vicki Collinsworth was an account executive at an Earthlink office in Overland Park, Kansas. Following surgery for breast cancer, she worked from her home. During that period, the company told Collinsworth her job was being moved to Pasadena, California, and she refused the transfer. She was fired and brought an FMLA lawsuit against Earthlink.
How To Survive an Employee Lawsuit: 10 Tips for Success
With lawsuits against employers becoming ever more common—and jury verdicts skyrocketing—your risk of getting sued has increased dramatically even if you’ve done all the right things. Learn how to protect yourself with our free White Paper, How To Survive an Employee Lawsuit: 10 Tips for Success.
Earthlink asked the court to dismiss the case, arguing that Collinsworth wasn’t eligible for FMLA leave. To qualify, an employee must work at a location where at least 50 employees are employed by the employer within 75 miles. But here, Earthlink contended, even though it employed thousands nationwide, it had fewer than 50 employees within 75 miles of its Overland Park location where Collinsworth’s job was located.
Collinsworth contended that her “worksite” was in fact at Earthlink’s Pasadena office, which had more than 50 employees. Although Collinsworth was based in Overland Park, her assignments were sent back and forth via e-mail, fax, and phone to the Pasadena office, where many of her supervisors were located. Collinsworth also made several trips to the Pasadena office. Now a federal court has given Collinsworth the green light to proceed with her case, finding that she raised sufficient fact issues about the actual location of her worksite.2
Cover All Your Bases
When an employee requests a leave that may be covered by state or federal family and medical leave laws, you must inform the person of their rights to family leave. This is true even if an employee doesn’t mention family and medical leave. For details, see the CEA Special Report, Compliance Guide to the Federal Family and Medical Leave Act and the California Family Rights Act.
Also, the Collinsworth case underscores the dangers of assuming an employee isn’t covered by the FMLA just because the person works at a small branch location. If your company is covered by the FMLA, an employee at a small office may well be eligible for leave, particularly if there’s a lot of contact back and forth with a larger office. Be sure to look at all the circumstances of the work arrangement before jumping to a risky conclusion.
(1) Conoshenti v. Public Service Electric & Gas Co., U.S.C.A. 3rd Cir. No. 03-2257, 2004
(2) Collinsworth v. Earthlink/Onemain Inc., U.S.D.C. (D. Kan.) No. 03-2299-GTV, 2003