Page 19 - John Hundley 2008

Sharp Thinking

No. 12 Perspectives on Developments in the Law from The Sharp Law Firm, P.C. September 2008
New Decisions Highlight Employer Duties

Under Family & Medical Leave Act

By Mandy Combs, Mcombs@lotsharp.com, 618-242-0246
Two decisions issued this month by the U.S. Court of Appeals
Chicago are focusing new interest on employers’ responsibilities under
the Family & Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601-2654.
The decisions – Pirant v. U.S. Postal Service, 2008 WL 4072817
(7th Cir. September 4), and Franzen v. Ellis Corp., 2008 WL 4149698
(7th Cir. September 10) – are instructive on the prerequisites for FMLA
coverage and liability.
Two of the most important prerequisites for FMLA coverage are that the claimant be an
“eligible employee” and that the employer be covered by the act. One generally is an eligible
employee if one has been employed by the employer for at least 12 months and performed at least
1,250 hours of service with such employer during the most recent 12-month period. (However,
certain government employees and officers are excluded, as are employees of an employer which
employs at the site fewer than 50 employees if its total employees employed within 75 miles of that
site are fewer than 50.)

A covered employer is anyone engaged in commerce, or an industry or activity affecting
commerce, who employs 50 or more employees for each workday in 20 or more calendar workweeks
in the current or preceding calendar year. Persons who act in the interest of an employer (e.g.,
supervisors and agent organizations) and successor entities also may be treated as employers.

Pirant dealt with the hours requirement to be an eligible employee. Payroll records credited
the plaintiff with 1,248.8 paid hours and 1,249.8 “TACS” hours during the relevant period (“TACS”
being an acronym for the Postal Service's time-clock system), both slightly short of the 1,250
requirement. Noting that it previously had rejected the concept of “de minimis shortfalls” which could
be overlooked, the court found the plaintiff short of the threshold and therefore ineligible.
Plaintiff argued that she was entitled to credit for the additional three to five minutes each
workday that it took her to put on and remove her gloves, shoes and work shirt, and which would
have put her well over the 1,250 requirement. The court said this type of activity was not an “integral
and indispensable” part of her principal work activities and therefore did not have to be counted.

In addition to the prerequisites discussed above, further conditions may apply before
FMLA rights and duties arise. For example, an employee is required to give 30 days notice if the
date of the leave is known, and such notice as is practicable otherwise.

An employer may require a certificate from a health care provider if leave is based on a serious
health condition. The certificate is to state when the condition commenced; its probable duration;
appropriate medical facts about it; and, if the leave is to care for a child, spouse or parent, a state-

●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●
Sharp Thinking is an occasional newsletter of The Sharp Law Firm, P.C. addressing developments in the law which may be of interest. Nothing contained in Sharp
Thinking shall be construed to create an attorney-client relation where none previously has existed, nor with respect to any particular matter. The perspectives herein
constitute educational material on general legal topics and are not legal advice applicable to any particular situation. To establish an attorney-client relation or to obtain legal
advice on your particular situation, contact a Sharp lawyer at the phone number or one of the addresses provided on page 2 of this newsletter.