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Flag on the Play: Court Takes Away Employer’s Victory Because of Mistake in the Employee Manual, by Jason Shinn, Michigan Employment Law Advisor [originally published February 5, 2015]


This past week saw the Seattle Seahawks skillfully avoid winning back-to-back Super Bowls because of (arguably) bad decision-making (all the Seahawks had to do was move the ball 36 inches into the end-zone – the only other decision worse than passing in that situation was having Katy Perry perform at half-time, but I digress).

An employer found itself in a similar situation and after further review its victory in an employment-related discrimination claim was reversed because of poor decision-making in relation to its employee manual.

Specifically, the Sixth Circuit Court of Appeals (the federal circuit that covers Michigan employers) reversed a trial decision in favor of an employer in Tilley v. Kalamazoo Cnty. Rd.Comm’n (1/26/2015). The employer was sued for claims under the Family Medical Leave Act (FMLA) (29 USC § 2601 et seq.) and under Michigan’s Elliott-Larsen Civil Rights Act.

The FMLA and Eligibility

For background purposes, the FMLA provides employees ‘a total of 12 workweeks of leave during any 12-month period for . . . a serious health condition that makes the employee unable to perform the functions of the position of such employee.’ 29 U.S.C. § 2612(a)(1)(D). Importantly, these FMLA benefits are not available to all employees. Only an ‘eligible employee’ who works for an ‘employer’ – as both terms are defined under Act – may obtain such benefits.

The Court of Appeals agreed with the district court that the plaintiff employee was not FMLA eligible pursuant to what is called the FMLA’s 50/75 Employee Threshold (to be FMLA eligible, an employer must employ at least 50 employees at, or within 75 miles of, the employee’s worksite at the time the FMLA leave was requested). Again, it was undisputed that the Road Commission did not employ at least 50 employees at, or within 75 miles of, his worksite at the time the plaintiff sought FMLA leave.

At this point, the employer should have been well into its touchdown dance. But there was a flag on the play – an incorrectly drafted employee manual. . . .