Does FMLA apply? Check local head count — Business Management Daily: Free Reports on Human Resources, Employment Law, Office Management, Office Communication, Office Technology and Small Business Tax Business Management Daily

Does FMLA apply? Check local head count

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If you have employees in several locations, some may be covered by the FMLA and others may not be. Keep careful track of which is which.

The key eligibility factor in the following case was the number of employees working in one of the employer’s two offices. The magic number is 50.

Recent case: Michael worked out of his employer’s Pennsylvania office until he was temporarily assigned to an office in California. He maintained his Pennsylvania residence, was on that office’s payroll and paid Pennsylvania payroll taxes.

He requested eight to 10 weeks off to care for his ill mother back home in Pennsylvania. During his time off, the company informed him that he was being terminated because the business was taking it “in another direction.”

Michael sued, alleging that he had been fired for taking FMLA leave.

But the employer argued that the California office wasn’t big enough to be covered by the FMLA. Michael claimed he was really an employee of the Pennsylvania office. His former employer argued that it didn’t have 50 employees there either and that the case should be dismissed because Michael hadn’t even alleged there were 50 or more employees in the Pennsylvania office.

The court said Michael could amend his complaint to show how many employees worked in the Pennsylvania office. If it’s 50 or more, he may have a case. If not, the case will probably be dismissed. (McDevitt v. American Expediting Company, No. 15-498, ED PA, 2015)

Note: An employee is only eligible to take FMLA leave if he or she works at a location where the employer has at least 50 employees working within  75 miles.

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