Rehiring Former Employees? Watch for FMLA Issues!
Kegler Brown Labor + Employee Relations Newsletter March 1, 2007
The Family Medical Leave Act (FMLA) has been a constant source of headaches for both judges and employers alike. Since its inception in 1993, the provisions of the FMLA have been difficult, if not impossible, to administer efficiently and effectively. The determination of when an employee becomes eligible for FMLA protection, however, was one area employers thought was relatively simple to understand. The Act states that for an employee to be an eligible employee under the FMLA, the employee must have worked for the employer for 12 months and have worked at least 1,250 hours in the twelve month period preceding the need for leave. Seems simple enough right?
Not so fast, my friend. A recent First Circuit Court of Appeals decision held that an employee who had worked with the employer previously, terminated his employment and later was rehired was able to count his previous employment toward the 12 month employment minimum, even though there was a five year break between the periods of employment.
The case Rucker v. Lee Holding Co., involved an employee who worked for an auto dealership for five years. The employee then left the dealership and found other employment, which he kept for a five year period. The employee then returned to the auto dealership and 7 and ½ months into his employment, injured his back. The employee took medical leave at various times over the next month and a half. After the employee had been absent from work 13 days, he was terminated. At the time of his termination, the employee had worked the requisite 1,250 hours but had only been employed for 7 and ½ months (not counting the previous employment).
The employee filed suit claiming that he was fired while on medical leave in violation of the FMLA. The district court granted the employer's motion to dismiss holding that his prior service with the dealership did not count toward the twelve month requirement and that because he was not an eligible employee for FMLA purposes (due to the fact he did not meet the minimum twelve month requirement), the leave was not covered by the FMLA. On appeal, the First Circuit reversed. Relying on the opinion of the Department of Labor, the First Circuit held that prior employment with the same employer can count toward the minimum twelve months of total employment required for eligibility under the Act.
The Court in Rucker did not decide whether a rehired employee's previous employment must be counted in all cases or, if after a break in service of some length the previous employment is no longer required to be counted in determining the employee's eligibility.
What Does This Mean?
The opinion in Rucker is the first on the issue of the FMLA's minimum twelve month eligibility requirement. Thankfully, the opinion only applies to a small class of employees, those that have been employed previously with the same employer and have worked 1,250 hours but have not been employed for twelve consecutive months at the time of their need for leave.
However, as the decision in Rucker demonstrates, the impact on that small class of employees can be quite large. For the time being, the best path to follow is to consider an employee eligible for FMLA purposes when the employee has worked 1,250 hours in the previous twelve month period and has been employed with the company for at least twelve months regardless of any break in service the employee may have. Any time your company intends to consider leave as not being covered under the FMLA on the grounds the employee is not eligible because they have not worked a minimum twelve months, you need to be sure the employee hasn't been previously employed with the company. Also, for any employers with seasonal employees, you need to keep an eye on an employee's total time of employment when determining FMLA eligibility (assuming the employee meets the 1,250 hour threshold).
The Rucker decision adds yet another hurdle into the obstacle course that is the FMLA, and while HR professionals will undoubtedly be inconvenienced by the increased monitoring and digging through old employment records, on balance, the cost of ignoring the decision could be much greater than the inconvenience, especially for those who would rather not become close friends with their labor and employment attorney.