The News From Kalamazoo: It Pays To Review Your FMLA Policy

Don’t think you need to periodically review your FMLA policies?  Think it’s just too expensive and time-consuming to properly train those who administer the FMLA at your company?  If you do, you may want to consider the case of Terry Tilley v. Kalamazoo County Road Commission.

Terry had worked for the Road Commission in Kalamazoo, Michigan, for years, but he was on the verge of being discharged.  In fact, he had just received a written final warning informing him that if he did not turn in a series of assignments on a timely basis, then he would be terminated.

On the morning his final assignment was due, Terry was hospitalized because he feared he was suffering a heart attack.  Suffice to say, Terry did not turn in his final assignment.  Instead, he informed the Road Commission that he would not be able to return to work until three days later.  The Road Commission sent Terry FMLA paperwork informing him in writing that he was “eligible for FMLA leave.”  Just what any good employer covered by the FMLA would do, right?  Well, maybe.

A few days after sending Terry the FMLA paperwork, the Road Commission discharged him for failing to timely submit his assignments.  Terry filed a lawsuit claiming that the Road Commission interfered with his right to FMLA leave and retaliated against him for taking FMLA leave.  Unfortunately for Terry, the federal district court granted the Road Commission summary judgment on his FMLA claims because he was not an “eligible employee” entitled to FMLA leave.

Remember, an employee is eligible for FMLA only if:

  1. He has worked at least 12 months for the employer;
  2. He worked at least 1,250 hours in that 12-month period; and
  3. The employer has 50 or more employees at or within 75 miles of the employee’s workplace.

The Road Commission did not employ 50 employees at or within 75 miles of Terry’s workplace.  Therefore, he was not an eligible employee under the FMLA.  Case closed!

Well, not quite.  Terry appealed to the Sixth Circuit Court of Appeals (covering Kentucky, Michigan, Ohio, and Tennessee).  Even though the Sixth Circuit agreed that Terry was not an “eligible employee” under the FMLA, the court reversed the district court and is allowing him to pursue his FMLA claims.

Why?  Because, careful reader, you may remember the Road Commission sent Terry FMLA paperwork informing him that he was entitled to FMLA leave, even though the Road Commission had no legal obligation to provide FMLA leave.

In addition, the Road Commission’s personnel manual clearly defined FMLA eligible employees as those who were full-time employees who worked for the Road Commission and accumulated 1,250 work hours in the previous 12 months.  The Sixth Circuit found this “unambiguous and unqualified statement” was a clear representation to Terry that he was entitled to FMLA leave.

Terry still had to show that he relied on the Road Commission’s statements to his detriment, which he did by submitting a sworn affidavit (no doubt prepared by his lawyer) in which he testified that he sought medical treatment prior to completing his final assignment because his employer’s unqualified and unambiguous statements led him to reasonably believe that he was covered under the FMLA.

Lessons for Employers

  1. Review your FMLA policies.  As the Sixth Circuit pointed out, a simple qualifying statement that employees were only eligible for FMLA if the Road Commission employed 50 or more employees at or within 75 miles of the employee’s worksite may have saved the day.  As the Road Commission learned to its detriment, it is well worth the investment of having experienced legal counsel review, and if necessary update, an employer’s FMLA policies.
  2. Train.  Those administering FMLA leave should receive comprehensive, periodic training to prevent the kind of mistakes the Road Commission made in this case.  The court noted “the Road Commission, itself, reviewed Terry’s circumstances, concluded that he was eligible, and twice communicated that conclusion to Terry.  The Road Commission is thus in no position to argue that Terry acted unreasonably in reaching the same conclusion.”

The Road Commission very likely spent tens of thousands of dollars litigating this case in the district court and at the appellate level in the Sixth Circuit.  Now that Terry may pursue his FMLA claims, the Road Commission will spend even more money either litigating the case before a jury, or paying a settlement to Terry.  The Road Commission learned a very expensive lesson that you can avoid with careful drafting and training.

For more information, please contact Mark McAnulty, a member of the KDDK Labor and Employment Law Practice Team, at or (812) 423-3183.

About the Author

Mark A. McAnulty

Mark A. McAnulty, a partner at Kahn, Dees, Donovan & Kahn, LLP, in Evansville, Indiana, practices labor and employment law, and is a member of the KDDK litigation and trial services practice team. Licensed to practice in Indiana, Kentucky, Illinois, and Missouri, Mark has represented clients in administrative and judicial proceedings throughout the tri-state area. Mark counsels clients regarding hiring and disciplinary issues, as well as compliance with local, state and federal employment laws. Mark also works with clients in reviewing and drafting employment contracts, non-compete agreements, and employee handbooks; and has advised and represented employers in labor management and union avoidance matters.

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