September 14, 2015

EMPLOYER COVERAGE

(a) Who is an Employer?

Dooling v. Bank of the West., 2013 WL 3776741 (E.D. Tex., July 17, 2013).

FACTS: Susan Dooling worked as a loan processor for GSB Mortgage. She was terminated from her employment after taking FMLA leave. She filed a lawsuit under the FMLA and named not only GSB as a defendant, but also Bank of the West. She alleged that both were an “integrated employer.”8 Defendants moved for summary judgment, arguing that only GSB employed Ms. Dooling and GSB only had twelve employees at its work site, instead of the 50 employee minimum necessary for coverage. Thus, defendants argued that neither one of them was an “employer” within the meaning of the FMLA.

HOLDINGS: The district court disagreed. It held there was sufficient evidence to create a jury question as to whether both companies were an “integrated” employer. In making this determination, the court looked at the following factors: (i) whether the companies had common management; (ii) the interrelation between their operations; (iii) whether there was centralized control of labor relations; and (iv) the degree of common ownership/financial control. The court examined in detail the interrelation of the operations between the two companies. It noted that they shared insurance and benefit plans and a Facebook  page and had issued computer and internet policies stating that they were part of the “Bank of the West network.” In addition, the court observed that both companies used the Bank’s human resources forms and company policies. The court also noted that a question existed about whether the same persons served as directors for both companies. The court concluded that the question of who was the employer should be decided by the jury.

Skinner v. Legal Advocacy Center of Central Florida, Inc., 2013 WL 5720142 (M.D. Fla. Oct. 21, 2013).

FACTS: Plaintiff Michelle Skinner worked as an in-house lawyer for the Legal Advocacy Center of Central Florida. She alleged that after she took FMLA leave, the Center retaliated against her and ultimately fired her. When she filed suit, she included both the Center and Community Legal Services of Mid-Florida, Inc. (“CLS”) as defendants. Both defendants filed a motion for summary judgment, contending that the plaintiff only worked for the Center and because it had less than 50 employees at plaintiff’s work site, it was not an employer under the FMLA. The plaintiff, however, argued that the Center and CLS should be deemed as an “integrated employer.”

HOLDINGS: The court in Skinner considered the same factors as the court in Dooling. With respect to common management, the Skinner court found that the Center and CLS had separate boards of directors that shared common members. Nevertheless, the court further found that the two defendants had separate management, staff, facilities, bank accounts and trust accounts. The Center and CLS maintained separate websites, budgets and policies and there was no evidence of centralized control of labor relations. Significantly, the court observed that the two companies did not even share one common employee. With respect to common ownership, the court did find that the companies received funding from the same ultimate source, but these funds remained separate and were not comingled. The court concluded that the plaintiff had not proved the
Center and CLS constituted an integrated employer and, therefore, she was not employed by an entity covered under the FMLA. The court dismissed her case.

(b) Joint Employers

Klein v. L-3 Communications Corp., 2013 WL 5913776 (M.D. Ala. Nov. 1, 2013).

FACTS: Carolyn Klein worked as an accountant for Army Fleet Support, LLC, which serviced aircraft for the military at locations in Alabama. Army Fleet was a wholly owned subsidiary of L-3 Communications Corporation. Both companies maintained separate books, records, payrolls, computer systems and physical offices. Six years after she was hired, Ms. Klein suffered a spinal fracture in a boating accident. Army Fleet placed her on immediate leave, but did not designate it as leave under the FMLA. She also received short term disability benefits while on leave. When she returned to work, she was terminated within hours and told it was part of a reduction in force. Ms. Klein then sued both Army Fleet and L-3 under the FMLA and Title VII. L-3 moved for summary judgment on the grounds that it was not her employer. Ms. Klein argued that Army Fleet and L-3 actually were “joint employers” and both could be liable under the FMLA.

HOLDINGS: In ruling whether L-3 was a “joint employer,”9 the court examined whether L-3 exercised sufficient control over the terms and conditions of Ms. Klein’s employment. The court considered the following factors: (i) the means and manner of plaintiff’s work performance; (ii) the terms, conditions, or privileges of her employment; and (iii) her compensation. The court found that Klein’s chain of command always was within Army Fleet, she reported to Army Fleet employees, she was supervised by that company’s managers, she received her work assignments from them and was paid by Army Fleet. The court noted that she rarely interacted with L-3 personnel and only had a handful of meetings with them over the course of her six years of employment. Although the plaintiff did show that L-3’s legal department might have been consulted about her
discharge, this was not sufficient to establish that the two companies were joint employers under the FMLA. The court held that Army Fleet was her exclusive employer and granted L-3’s motion for summary judgment.

(c) Individuals

Grigg v. Griffith Co., 2013 WL 5754986 (E.D. Cal., Oct. 23, 2013).

FACTS: After Russell Grigg served 33 years in various positions for the Griffith Company, it promoted him to the position of Vice President/District Manager. Shortly after his promotion, Grigg began to experience health problems. He subsequently took a 12 week leave of absence for medical reasons. While he was on leave, the President and CEO of the company, Thomas Foss, terminated Grigg’s employment. Grigg filed suit in federal court alleging violations of the FMLA, the ADEA and California law. In addition to suing the company, he also sued Foss, naming him as an individual defendant. Foss moved to dismiss the lawsuit against him, arguing that he could not be individually liable to Grigg under the FMLA.

HOLDINGS: The district court disagreed with Foss. It recognized that the definition of employer under the FMLA extends to “any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such an employer.” It held that because Foss was the President and CEO of the company, he came within this definition. Moreover, Foss also was an officer of the company and had directed Grigg’s termination, which exposed him to potential individual liability under the FMLA.

7 See Wage and Hour Division Enforcement Statistics, DOL Wage/Hour Division and Printing Industries of America at http://www.printing.org/page/10114. 8 See 29 C.F.R. §825.104(c). 9 See 29 C.F.R. §825.106.

EMPLOYEE ELIGIBILITY

(a) General Eligibility

Hill v. Walker, 737 F.3d 1209 (8th Cir. 2013).

FACTS: The Arkansas Department of Human Services hired Yulanda Hill as a family service worker on June 28, 2010. Hill suffered from depression and anxiety which worsened because of the stress of her job. These conditions eventually caused her to miss court appearances for her clients and led her to unilaterally remove herself from cases. Following a disciplinary meeting, she provided the Department with a doctor’s note stating that she would be under a physician’s care from May 25 until June 20, 2011, and left work. Her supervisor subsequently sent her a letter demanding that she return to work on June 6. When Hill did not return to work, the department terminated her employment. Hill sued the Department for alleged violations of the FMLA.

HOLDINGS: The Court of Appeals affirmed the dismissal of her case. It held that she was not an eligible employee under the FMLA because she had not worked for the Department for 12 months. See 29 U.S.C. §2611(2)(A)(i). Although Hill argued that a pre-eligibility request for a post eligibility leave can be protected by the FMLA, the court concluded that the leave she had requested would have commenced before she became eligible. Thus, she was not an eligible employee under the statute.

Basden v. Professional Transportation, Inc., 714 F.3d 1034 (7th Cir. 2013).

FACTS: Terry Basden worked as a dispatcher for the defendant which provided transportation services for train crews. She began her employment in June 2007. Approximately seven months later, she began to experience episodes of dizziness that caused her to fall. These resulted in her repeatedly missing work and she received warnings for violating the company’s attendance policy. In May 2008, she was suspended. While on suspension, she requested a 30 day leave of absence because of “complications due to medical illness (MS).” The company denied the request and terminated her when she failed to return from suspension. She sued under both the ADA and the FMLA.

HOLDINGS: With respect to her FMLA claim, the court recognized that it was undisputed that the defendant terminated Ms. Basden before she had been employed for 12 months. According to the FMLA’s explicit terms, employees without 12 months of tenure are ineligible for protection. Basden argued that the FMLA should not be interpreted to preclude relief for non-eligible employees who request leave for future periods when they will be eligible. The court held, however, that the leave she requested would have commenced before she would have become eligible and was not protected by the FMLA.

(b) The “50/75” Rule

Grote v. Beaver Express Service, LLC, 2013 WL 4402822 (D. Kan., Aug. 15, 2013).

FACTS: The defendant trucking company operated a terminal in Wichita,  Kansas. The defendant hired the plaintiff, Jenny Grote, as an administrative assistant. Following several years of service, it promoted her to office manager. In 2010, Grote began to experience medical problems including irritable bowel syndrome, gastritis, and a hiatal hernia. She eventually was hospitalized for gall bladder surgery. When she returned to work five days after her surgery, the defendant told her she was being “let go due to the economy and work quality.” Grote filed suit under the FMLA, the ADA and ERISA. She alleged that during her employment, she had never been counseled about work performance and she
was aware of no performance problems. The defendant did not contend that Grote had been employed for less than one year or that she had worked less than 1,250 hours in the previous 12 months. Instead, it argued that Grote was subject to the “50/75 Rule.” That is, the FMLA’s exclusion of those employees who work for an employer which employs fewer than 50 people within 75 miles of the employee’s work site. The defendant alleged that it did not employ 50 or more employees within 75 miles of its Wichita terminal.

HOLDINGS: The court denied the company’s motion to dismiss. It held that the company had the burden of establishing Grote came within the 50/75 exemption and would need to submit admissible evidence in support of this defense. Moreover, the court observed that Grote had alleged that the company’s employee handbook stated that its employees were eligible for 12 weeks of FMLA leave without mentioning that some employees might not be covered. The court, therefore, held that the plaintiff also might be able to establish that the defendant should be estopped from denying that Grote was not covered by the FMLA.

Larson v. United Natural Foods West Inc., 518 F. App’x 589 (9th Cir., May 17, 2013).

FACTS: The plaintiff worked for the defendant as a commercial truck driver. After he tested positive for alcohol and was diagnosed with alcohol dependence, the defendant terminated his employment. The plaintiff contended that the defendant had failed to give him a thirty day leave of absence which had been recommended by the company’s substance abuse professional. He sued the defendant for interfering with his rights under the FMLA. The district court entered a summary judgment in favor of the defendant.

HOLDINGS: The Court of Appeals held that plaintiff’s case had been properly dismissed because the plaintiff was not a covered employee. The FMLA specifically excludes from its coverage employees at work sites where the employer has fewer than 50 employees within 75 miles of that location. The DOL has issued regulations defining what constitutes a “work site” for particular professions, and in the case of truck drivers, the “work site is the terminal to which they are assigned, report for work, depart and return after completion of a work assignment.” 29 C.F.R. §825.111(a)(2). The yard at which the plaintiff worked constituted his work site because he physically reported there every day, received his deliveries there and returned to it at the end of the work day. The defendant proved that it employed fewer than 50 persons within 75 miles of the
yard and the plaintiff was not covered by the FMLA.

Larson v. United Natural Foods West Inc., 518 F. App’x 589 (9th Cir., May 17, 2013).

FACTS: The plaintiff worked for the defendant as a commercial truck driver. After he tested positive for alcohol and was diagnosed with alcohol dependence, the defendant terminated his employment. The plaintiff contended that the defendant had failed to give him a thirty day leave of absence which had been recommended by the company’s substance abuse professional. He sued the defendant for interfering with his rights under the FMLA. The district court entered a summary judgment in favor of the defendant.

HOLDINGS: The Court of Appeals held that plaintiff’s case had been properly dismissed because the plaintiff was not a covered employee. The FMLA specifically excludes from its coverage employees at work sites where the employer has fewer than 50 employees within 75 miles of that location. The DOL has issued regulations defining what constitutes a “work site” for particular professions, and in the case of truck drivers, the “work site is the terminal to which they are assigned, report for work, depart and return after completion of a work assignment.” 29 C.F.R. §825.111(a)(2). The yard at which the plaintiff worked constituted his work site because he physically reported there every day, received his deliveries there and returned to it at the end of the work day. The defendant proved that it employed fewer than 50 persons within 75 miles of the
yard and the plaintiff was not covered by the FMLA.