Jason Hearst (Hearst) was hired by Progressive Foam Technologies, Inc. (Progressive) on March 16, 2006. He suffered a work related injury on December 3, 2006. On January 3, 2007, Progressive determined that Hearst was eligible and approved FMLA leave. Hearst took the full 12 weeks of FMLA leave. Thereafter, he remained on leave leave until his termination on May 1, 2007.
Hearst sued alleging that his termination violated the FMLA. He argued that, because he was not an "eligible employee" under the FMLA leave when his leave commenced on January 3, 2007, none of the leave used between then and March 16, 2007 (his one-year anniversary) can be counted against his 12 weeks of FMLA leave. As such, he had sufficient leave left over to cover his remaining absences. The court disagreed.
The court offered two justifications for its determination. First, the court relied on regulatory language that the FMLA was "not intended to discourage employers from adopting or retaining more generous leave policies." 29 CFR 825.700(a). Whether knowingly or in error, the court observed, Progressive extended FMLA leave to an employee who, statutorily, was not entitled to it. The FMLA, however, permits an employer to adopt a more generous leave policy and permit FMLA leave before the employee is statutorily eligible. The FMLA's twelve month employment provision, the court observed, was intended to protect employers, not employees. "In keeping with Congress's intent of permitting more liberal leave policies, an employer should be permitted to waive the twelve month work requirement in order to provide an employee the FMLA leave before the employee is statutorily entitled to the leave." The court concluded that punishing employers for adopting more generous leave polices was contrary to the purpose of the FMLA.
The court also found that equity trumped the employee's position. The court noted that, typically, equitable estoppel involves an employer designating an employee's leave as FMLA leave, the employee's reliance on that designation, and the employer's later argument that the employee did not qualify for FMLA leave. Here, the court applied equitable estoppel against Hearst. The court observed:
Comment: I disagree with the court's rationale based on the "more generous leave" policies language of 825.700(a). To me, the decision confuses statutory eligibility with employer leave policies. Congress set the statutory minimum eligibility requirement for FMLA leave at 12 months of employment. The FMLA does not authorize an employer to modify that statutory language at will. What it allows is an employer to provide more generous leave benefits as a matter of policy. An employer could, therefore, waive the 12-month eligibility requirement as a matter of company policy. As such, the employee may enjoy FMLA-like protections and benefits prior to reaching the statutory 12-month FMLA minimum. But such rights are enjoyed as a product of the employer's policy, not statutory FMLA.
The equitable estoppel argument is more intriguing. Estoppel precludes a person from asserting a fact or a right, or prevents one from denying a fact. It protects one party from being harmed by another's voluntary conduct, whether by action, silence, acquiescence, or concealment of facts. It is not at all clear to me that equitable estoppel should apply in this situation.
The FMLA requires employers, not employees, to know what they are doing in terms of the requirements of the law, including whether an employee is eligible for FMLA leave. Many cases have held that employee's may assert their FMLA rights even though they are not required to know that the FMLA even exists. The reason for this is simple: because employer's are required to know FMLA rights and responsibilities, not employees.
In that context, it is a bit of a stretch, at least for me, to argue that because Hearst took FMLA leave based on Progressive's erroneous determination that he was eligible and that it was designating the leave as FMLA, that somehow his acting on Progressive's erroneous determination and representations gave rise to a detrimental reliance claim on the part of Progressive. The decision does not reflect that Hearst knew or should have known that he did not meet the statutory eligibility requirements for FMLA leave. Had Progressive properly done its job in the first instance the leave would not have been covered by the FMLA. I don't see how it is equitable to prevent Hearst from correctly asserting his FMLA rights wholly based on Progressive's failure to do so in the first place.
My opinion notwithstanding, the decision remains available for use by employers.
Hearst v. Progressive Foam Technologies, Inc., No. 4:08CV04190-WRW, 2009 U.S. Dist. LEXIS 73945 (E.D. Ark. Aug. 20, 2009).