A recent federal district court decision serves as a reminder to employers to review their employment policies carefully to ensure that they accurately reflect their employees' entitlement, if any, to leave under the Family and Medical Leave Act.

In Reaux v InfoHealth Management Corp(1) the court rejected an employer's motion to dismiss where the employer argued that the plaintiff was not covered by the Family and Medical Leave Act because the employer had fewer than 50 employees within 75 miles of the plaintiff's work location (the '50/75 rule'). The court held that the employer was equitably estopped from raising a defence under the 50/75 rule based on a Family and Medical Leave Act leave policy contained in the employee handbook and the employer's oral assurances to the plaintiff that she was eligible for leave. The handbook outlined procedures for Family and Medical Leave Act leaves of absence, stating that the employer had a policy of providing unpaid leave to eligible employees "in compliance with the Family and Medical Leave Act of 1993" and defining 'eligible employees' as those merely satisfying the length of service and working hour requirements of the act. The plaintiff claimed that she had followed the procedures outlined in the employee handbook. Not only did the employee handbook contain such language, but the plaintiff's supervisor also told the plaintiff that she would be entitled to maternity leave under the act if she completed the necessary documentation. During the plaintiff's leave, which she believed to be approved leave under the act, the plaintiff's employment was terminated.

While acknowledging the viability of the 50/75 rule, the court in Reaux found this defence inapplicable on the facts presented because:

  • the employer misrepresented to the plaintiff orally and in writing that she was eligible for Family and Medical Leave Act leave;
  • the plaintiff relied on this misrepresentation; and
  • the plaintiff was terminated during her leave.

The court noted that the Seventh Circuit had "previously assumed but not decided" that equitable estoppel could bar an employer's defence to Family and Medical Leave Act eligibility and that courts in other circuits had recognized that equitable estoppel could block such a defence.

Particularly in light of the recent amendments to the Family and Medical Leave Act, employers should be vigilant about ensuring that their policies are up to date. Moreover, employers should ensure that their policies do not inadvertently confer Family and Medical Leave Act rights on employees who would not otherwise be entitled to statutory protection.

For further information on this topic please contact Kevin B Leblang or Robert N Holtzman at Kramer Levin Naftalis & Frankel LLP by telephone (+1 212 715 9100), fax (+1 212 715 8000) or email (kleblang@kramerlevin.com or rholtzman@kramerlevin.com).


(1) No 08 C 5068, 2009 US Dist LEXIS 18140 (ND Ill March 10 2009).