The Seventh Circuit Court of Appeals recently issued a ruling relevant to employers with multiple worksites and employers who are considering multiple worksites, including telecommuting and other off-site employment arrangements. In the ruling, the court held that an employee who was not eligible for FMLA leave might nonetheless have a common law right under state law to the equivalent of FMLA. How did this happen? How can you prevent a similar issue?

Under the FMLA, an “eligible employee” is an employee of a covered employer who (i) has been employed by the employer for at least 12 months, (ii) has been employed for at least 1250 hours of service during the 12 months immediately preceding the commencement of the leave, and (iii) is employed at a worksite where 50 or more employees are employed by the employer within 75 miles of that worksite (sometimes referred to as the “50/75 rule” or “50/75 exception”).

In the recent case, the plaintiff worked at a facility that employed fewer than 50 employees. Moreover, the employer did not employ 50 or more employees within 75 miles of the plaintiff’s worksite. As a result, the plaintiff was not eligible for FMLA under the FMLA’s “50/75 exception.”

The plaintiff went on leave after undergoing surgery. The company sent plaintiff a standard letter explaining the company’s general FMLA policy. The employee handbook also set forth the company’s FMLA policy in detail. Unfortunately, these communications stated that the company’s FMLA policy applied to “all employees,” and did not list an exception for employees of the company who worked at sites that did not satisfy the “50/75 exception.” The plaintiff was terminated upon return from leave because he would not accept a different (non-equivalent) position upon return from leave.

The plaintiff sued claiming he had been denied the right to reinstatement to the same position or and equivalent position upon return from leave as afforded by the FMLA.

The court found that the plaintiff was ineligible for FMLA leave under the “50/75 exception;” however, the court found that the representations made by the company in the standard letter and in the employee handbook might give the plaintiff a right under state law to protections equivalent to the FMLA. The court found that even though the company’s letter and employee handbook might not establish an implied or express contractual right to FMLA leave, the plaintiff might be able to state a promissory estoppel claim for leave and recover damages if he reasonably relied to his detriment on the company’s general representations regarding the availability of such leave to “all employees.”

The case serves as yet another lesson to employers with multiple worksites, such as satellite offices or service centers, to exercise care and caution in the drafting of FMLA handbook policies, notification or designation letters, or other materials that summarize or explain FMLA eligibility (as well as other personnel policies and communications). Employers should specifically identify worksites that do not satisfy the “50/75 rule,” and make clear in all communications to employees employed at such non-covered worksites that they are not eligible for FMLA benefits or FMLA-equivalent benefits. This caution also applies to covered employers who currently utilize or are considering offering the opportunity for offsite and telecommuting employment arrangements to individuals or smaller groups of employees.