In Freeman v. Sikorsky Aircraft Corp., No. 04-CV-0506-CVE-SAJ, 2006 U.S. Dist. LEXIS 58362 (N.D.Ok. Aug. 17, 2006), the employee accepted a job in September 1999 as Base Manager of the defendants' site in Brazil. As part of his job he would occasionally return to the United States for meetings. On January 4, 2004, Freeman left Brazil and flew to Tulsa, Oklahoma without notice to his employer. There, he was diagnosed as suffering from a major depressive disorder and panic disorder. On January 9, his physician contacted the defendant and requested medical leave for plaintiff. He was granted FMLA leave and his payroll status was changed to "domestic" because he was now living in the United States. He was not informed at the time that he was not eligible for FMLA leave. The company subsequently terminated Freeman allegedly because he failed to reconcile missing company funds and property. Freeman sued alleging that he was terminated in retaliation for having taken FMLA leave. The court found otherwise. Freeman, the court found, was not eligible for FMLA leave. At the time his leave commenced he was employed in Brazil. Employees who are "employed in any country other than the United States or Territory or possession of the United States" are not "eligible employees' for the purposes of the FMLA. 29 CFR 825.800. The court rejected the argument that his worksite was in the United States based on occasional business at the defendant's headquarters.
Comment: Note that the Freeman court did not address the affect of the employer's failure to notify Freeman that he was not eligible for FMLA leave. By operation of 29 CFR 825.110(d), the employer's failure to notify Freeman that he was not eligible for FMLA leave should have resulted in him being deemed eligible. The decision fails to address this issue at all. Many courts have found this provision to be Constitutionally invalid because it grants eligibility status to those who do not meet the eligibility requirements set by Congress as a penalty for an employer's failure to abide by the DOL notice requirements.