Public and Private Employers Subject to 50 Employee Threshold Under the FMLA: Does Unconditional Language in Employee Manual Create a Jury Question?

Both private and public employers are subject to the Family Medical Leave Act (FMLA), which allows eligible employees to take up to 12 weeks of unpaid leave from their employment if they meet certain statutory requirements (employed for at least 12 months, and worked 1250 hours within the preceding 12 months). The FMLA defines a “covered employer” as being “any person engaged in commerce or in any industry or activity affecting commerce, who employs 50 or more employees for each working day during each of 20 or more calendar work weeks in the current or preceding calendar year.” The FMLA specifically includes public agencies within this definition.

The Federal Regulations have complicated the issue for public agencies, however. For example, 29 CFR 825.104(a) confirms the 50 employee threshold language for employers, but then adds: “Public agencies are covered employers without regard to the number of employees employed.” 29 CFR 825.108(d) then goes on to state, “All public agencies are covered by the FMLA regardless of the number of employees; they are not subject to the coverage threshold of 50 employees carried on the payroll each day for 20 or more weeks in a year.” An ambiguity is then created in the second half of 29 CFR 825.108(d) which states, “However, employees of public agencies must meet all of the requirements of eligibility, including the requirement that the employer (e.g. State) employ 50 employees at the work site or within 75 miles.”   So which is it? Are public agencies with less than 50 employees covered or not?

The Sixth Circuit recently cleared up this ambiguity in Tilley v Kalamazoo County Road Commission, 2015 WL 304190 (decided January 26, 2015). In Tilley, the Court of Appeals interpreted 29 CFR 825.108(d) as meaning that even though a public agency is considered to be a covered employer under the FMLA, the public employee himself is only eligible for FMLA leave if his employer, the public agency, meets the 50/75 employee threshold.

The Court of Appeals rejected Tilley’s argument that applying the FMLA 50/75-employee threshold would create “the oxymoron that a public employer with less than 50 employees is covered under the FMLA, but none of its employees would ever be eligible to take a leave under the FMLA.” The Court reasoned that it is an “entirely sensible conclusion that public employees, like their private counterparts,” are only eligible under the FMLA if their employers meet the 50/75 employee threshold. In other words, the Court of Appeals has addressed the ambiguity directly, and has resolved it in favor of treating both private and public employees equally. The Court also clarified that the determination of the 50/75 threshold is as of the date of the employee’s application under the FMLA.

This holding should have resulted in an immediate dismissal of Tilley’s claims against the Kalamazoo Road Commission. However, the Court held that a jury must decide whether the Commission should be estopped from asserting the 50/75 threshold, because of the following language in the Commission’s employee manual:

“Employees covered under the Family and Medical Leave Act are full-time employees who have worked for the Road Commission and accumulated 1,250 work hours in the previous 12 months.”

The Court found this to be a material misrepresentation upon which Tilley could have reasonably relied. The Court found that the Commission should have used qualifying language to inform employees of their rights under the FMLA, such as that they “could be eligible for FMLA benefits “if, among other things, there are at least 50 employees within 75 miles [at the time of the FMLA application].” (Emphasis added). Because the Commission did not use such qualifying language, Tilley’s case against it had to be presented to a jury for determination, instead of being summarily dismissed based on the 50/75 employee threshold.

Linda Davis Friedland is an attorney in our Livonia office where she concentrates her practice on commercial litigation, employment and labor law, corporate and business law, estate planning, utilities Law and municipal Law. She may be reached at (734) 261-2400 or lfriedland@cmda-law.com.