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FMLA Eligible or Not Eligible … That is the Question

The easiest part of handling a Family and Medical Leave Act (FMLA) situation is determining at the outset whether the employee is eligible for FMLA protections, right? Not so fast. Recent cases have added the seemingly simple eligibility determination to the rotisserie of FMLA issues on which employees may baste employers.

An employee is eligible for FMLA protections if: 1) she has been employed with a particular employer for at least 12 months; and 2) has worked at least 1,250 hours for that employer in the previous 12 months. It may appear to be a straightforward analysis, but like all things “FMLA,” even the determination of eligibility has some traps for the unwary.

The United States Court of Appeals for the Eighth Circuit (covering Minnesota, Iowa, Missouri, Nebraska and Arkansas) surprised an employer in a recent case in which the employee raised and won FMLA claims. She began working for the employer on November 17, 2008, as a caretaker at one of its commercial properties. She began experiencing abdominal pain in October 2009, and by November 12, 2009, her doctor limited her to working no more than 20 hours per week. The employee gave the doctor’s note to her supervisor on Friday, November 13, 2009, and worked a few hours that day without any spat. However, certain managers met later that day and decided to terminate her employment. She was not scheduled to work on the weekend, but when she came in to work on Monday, November 16, 2009, she was called into a meeting and informed that the company decided to terminate her employment because it was “unable to accommodate the work [hour] restrictions provided by [her] physician.” The employee sued on a wide variety of claims, including the allegations that it interfered with her FMLA rights and retaliated against her for seeking FMLA protections.

The district court dismissed all of the employee’s claims except the FMLA claims, and it awarded her over $160,000 in back pay and liquidated damages for violation of her FMLA rights. On appeal the employer argued the employee was not eligible for FMLA because her employment was terminated a day before the one-year anniversary of her employment. The Court disagreed, noting that she clocked in on November 16 and was on paid time when she was called into a meeting and fired. Because November 16 was the last day of the 12-month period that commenced on November 17, 2008, the employee “worked” for at least 12 months and therefore was eligible for FMLA protections when she was fired. Presumably, the employee would have had no FMLA rights had the employer fired her on Friday, November 13 when it made the termination decision. The appellate court affirmed the finding that the employer violated the FMLA by terminating her when she in effect requested partial leave, but it remanded the case to the trial court to allow a jury to consider some issues relating to the damages that had been awarded by the judge.

The 1,250 work-hours prong of the eligibility determination can be dicey too. Recently a federal district court denied an employer’s motion to dismiss an FMLA claim. The employer argued that plaintiff was not eligible for FMLA protections because she had not worked at least 1,250 hours in the prior 12 months. But the plaintiff alleged that the time clocks were inaccurate, citing certain instances of malfunctions, and therefore the employer’s records of hours worked were not sufficiently credible to justify dismissal of the case based on the employer’s claim that the plaintiff had not worked at least 1,250 hours. The court credited that claim and refused to dismiss the case. Maybe the employer will eventually win that case, but its inability to get it dismissed at the outset means that it will now be spending even more time and money in litigation.

The moral of these stories? Do not believe that an “ineligibility” defense to an FMLA claim is always a no-brainer winner. From time to time, courts will view the facts in an employee-friendly manner and adopt creative conclusions about an individual’s eligibility for FMLA protections. Employers cannot inoculate themselves from all possible approaches of plaintiffs’ lawyers who offer creative arguments about eligibility, and you should be cognizant of the possibility that these arguments sometimes work and account for those risks in your analysis of the settlement value of any particular case.

© 2020 Foley & Lardner LLPNational Law Review, Volume V, Number 243


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Foley’s Labor & Employment attorneys counsel you on ways to foster and maintain effective labor-management relations.

Strife between your management personnel and employees can affect your company’s morale and bottom line. Foley’s Labor & Employment attorneys combine compliance counseling and litigation services, cutting-edge technology and training offerings, and communication tools to help you promote effective labor-management relations and ensure compliance with state and federal labor, discrimination, and wage and hour laws.