Employer Stuck with Mistaken Indication That Employee Was FMLA-Eligible

​An employee is entitled to pursue her case for violations of the Family and Medical Leave Act (FMLA), despite her conceded noneligibility for FMLA leave, after the employer erroneously indicated that she was eligible for the leave, according to a federal district court.

The plaintiff began working for the city of Houston in May 2017. Upon hire, the plaintiff received the city's policies and procedures manual, which included the city's FMLA policy. The policy clearly stated that only employees who have worked for the city for one year—in addition to meeting other statutory requirements—are eligible for FMLA leave.

In February 2018, after her daughter was hospitalized, the plaintiff requested FMLA leave and asked the city's FMLA coordinator to send her an FMLA packet. The coordinator sent the plaintiff a packet, which included a Notice of Eligibility and Rights and Responsibilities, on which the coordinator checked a box stating that the plaintiff was eligible for FMLA leave. Several days later, the coordinator sent a corrected notice, indicating that because the plaintiff had not been employed for one year, she was not eligible for FMLA leave. The plaintiff was terminated soon thereafter.

The plaintiff sued the city of Houston for violations of the FMLA, including both a claim for interference with FMLA rights and for retaliation based upon the exercise of FMLA rights. Among other defenses, the employer argued that it was entitled to summary judgment as to the plaintiff's claims because she was not eligible for FMLA leave under the statute, based upon her tenure with the city.

[SHRM members-only toolkit: Managing Family and Medical Leave]

The plaintiff argued, and the district court agreed, that the city could not rely on the plaintiff's ineligibility in light of the erroneously provided notice informing the plaintiff that she was eligible for FMLA leave. The court applied a three-part test adopted in an earlier decision of the 5th U.S. Circuit Court of Appeals: "An employer who without intent to deceive makes a definite but erroneous representation to [an] employee that she is an 'eligible employee' and entitled to leave under FMLA, and has reason to believe the employee will rely upon it, may be estopped to assert [prevented from asserting] a defense of noncoverage, if the employee reasonably relies on that representation and takes action thereon to her detriment."

The court concluded that the first element of the test, an "erroneous representation," was clearly satisfied by the written notice indicating the plaintiff was eligible for FMLA leave. The second element, foreseeable reliance on the erroneous representation, was likewise met because the city was aware the plaintiff was requesting the leave to care for her daughter and could conceivably have made alternate arrangements for other family to provide care had she known she was not eligible for FMLA-protected leave.

As to the third element—that the plaintiff reasonably relied on the erroneous information—the court held that a factual dispute was presented that precluded summary judgment in favor of the employer. Specifically, the court rejected the employer's argument that, as a matter of law, the plaintiff could not have reasonably relied on the notice given that the city's stated FMLA policy was that an employee had to have one year's service in order to be eligible for FMLA leave.

Accordingly, the employer's motion for summary judgment was denied.

Byrd v. City of Houston, S.D. Texas No. 18-cv-778 (Jan. 29, 2019).

Professional Pointer: The notices required under the FMLA are important legal documents and must be prepared with the utmost care and attention to detail.

Karen Rhodes is an attorney with Swerdlow Florence Sanchez Swerdlow & Wimmer, the Worklaw® Network member firm in Beverly Hills, Calif.

[Visit SHRM's resource page on the Family and Medical Leave Act.]