Can handbook, poster create FMLA liability?
Issue:

Andrew missed several weeks of work after he contracted meningitis. Due to his extensive absences, he was discharged on the day he attempted to return to work. The printing facility where Andrew worked employs less than 50 employees and is located in Iowa. The company’s headquarters, located in Minnesota, employs over 50 employees. Employees at both worksites were provided with copies of the company’s personnel policy handbook, which discussed FMLA rights and procedures. The handbook did not distinguish between the two facilities and failed to mention that employees working at the Iowa facility were not covered by the FMLA because there were less than 50 workers employed at that site. The employer also displayed the Department of Labor’s FMLA poster at both facilities.

After he was terminated, Andrew filed a lawsuit alleging interference and retaliation under the FMLA. He argued that because of his company’s representations regarding FMLA entitlement in its handbook and poster, it was estopped from claiming that the FMLA did not apply to him. Will he be successful?

Answer:    

Maybe. In a case with similar facts, a federal trial court ruled that an employee could proceed to trial on his FMLA claims. Although the employer in that case argued that it never explicitly guaranteed leave to the employee, the court noted that the employer may have engaged in conduct that “was unmistakably likely to mislead” an employee.

Handbook. The handbook defined which employees were eligible for FMLA leave based on hours worked and period of employment. It failed, however, to mention that the Iowa employees were excluded from coverage based on the fact that less than 50 employees worked at that facility. The employer’s silence on this issue, the court noted, could lead a jury to conclude that the employee was covered.

Poster. The employer argued that the FMLA poster on the bulletin board should have eliminated any likelihood that employees would be misled because it explicitly stated the FMLA’s coverage requirements. The court concluded, however, that it is neither reasonable nor equitable to assume that an employee will know how many workers are employed within 75 miles of the worksite. Nor would it be reasonable to assume that an employee would be under an obligation to investigate whether the 50-employee requirement was met in the face of a statement in a handbook that is likely to mislead an employee into believing that the employer is covered by the FMLA.

Reliance. Although the employee never requested FMLA leave or even referred to the FMLA, the court noted that a jury could find that the employee relied on the availability of FMLA leave and the right to return to his prior or an equivalent job at the conclusion of his leave.

Cite: Myers v. Tursso Co, Inc (NDIowa 2007) 154 LC ¶35,333.
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