The playground game of tag has been played since at least the Cretaceous Period, with efforts by paleontologists to verify earlier origins of the game inconclusive to date. As all sophisticated tag players know, the unwritten rules of the game permit no tag-backs. Once you’ve been tagged, you can’t quickly undo having become “it” by retagging the little hobgoblin who just tagged you. This is a rule of basic fairness, also designed to ensure clarity among the players as to who has become “it.”
A recent decision in the Sixth Circuit Court of Appeals applied the no tag-backs rule to employers, with respect to FMLA claims. In Tilley v. Kalamazoo County Road Commission, the employer tagged the employee with FMLA rights by notifying him that he was covered under FMLA. (In this version of the game it’s good to be “it.”) When the employer later realized that it lacked 50 employees within a 75-mile radius and therefore did not have to cover the employee, it tried a tag-back, telling the employee that he was not eligible for FMLA coverage. By that time, however, the employee had already relied on the employer’s representations and went on leave before an assignment was due. When he missed his assignment deadline, which passed while he was on leave, the employer fired him and claimed that he had no FMLA rights.
No tag-backs, said the three-judge panel. The Court observed that the handbook’s FMLA policy listed only two of the FMLA’s three main eligibility criteria (one year of employment and 1250 hours worked in the past 12 months) but said nothing about the 50/75 rule. Applying the policy language, the Court held that there was no doubt the policy, as written, covered him. The Court also noted that the employer had told the employee, in writing, that his absence was FMLA-qualifying.
The Sixth Circuit held, therefore, that the employer could not take back FMLA rights it had granted to the employee, even though it did not have to grant the employee those rights in the first place.
In this case, the employer’s handbook and representations worked against it, creating legal obligations where none should have existed.
Employers should check their FMLA policies to be sure they include all required eligibility criteria and do not create a lower threshold for coverage than the FMLA imposes. A policy that is hastily written or that attempts to paraphrase the coverage rules can create FMLA liability where the law does not.
And in case you were wondering, T. Rex thrived during the Cretaceous Period but is rumored to have been terrible at tag. Tiny arms.