Articles

Notice Of Employer’s FMLA Leave Calculation Method Must Be Provided To Employees

By Carol G. Schley, Esq.

Deciding an issue of first impression in Michigan, the U.S. District Court for the Western District of Michigan has held that an employer is obligated to notify its employees of the method it uses to calculate the amount of leave available under the Family and Medical Leave Act (“FMLA”). Failure to provide this notice to an employee requesting FMLA leave will result in the employee being entitled to leave under the calculation method most favorable to the employee.

In Austin v. Fuel Systems, LLC, 379 F.Supp.2d 884 (W.D. Mich. 2004) the plaintiff, Pamela Austin, was a customer service representative for Defendant Fuel Systems. Austin was diagnosed with a congenital defect that resulted in severe headaches, neck pain and tingling in her left arm, and opted to have surgery to relieve these symptoms. Austin requested and was granted FMLA leave by her employer. Austin’s leave commenced on October 7, 2002. On December 16, 2002, the employer asked Austin when she expected to return to work. Austin’s response was that she would not know until her doctor’s appointment on January 16, 2003. After that appointment, Austin submitted a note from her doctor stating she could return to work part-time on January 20, 2003. That same day, the employer terminated Austin’s employment with the belief that Austin had exhausted her FMLA leave.

Austin subsequently filed a lawsuit against her employer alleging, among other things, that her termination was unlawful under the FMLA. The employer denied this contention, stating that Austin’s leave exceeded the 12 weeks allowed under the FMLA, under the “rolling method” for calculating entitlement to FMLA leave. Austin disputed this, stating that because her employer never informed her that it calculated FMLA leave using the “rolling method,” she was entitled to have her leave calculated using the method most beneficial to her, i.e., 12 weeks of leave in calendar year 2002 and 12 weeks of leave in calendar year 2003.

The Austin court acknowledged that the FMLA statute and regulations do not explicitly require employers to inform their employees of the method used to calculate FMLA leave, and that there was little case law on the issue. However, the court looked to and relied upon a 9th Circuit case, Bachelder v. America West Airlines, Inc., 259 F.3d 1112 (9th Cir. 2001) which found that the FMLA statute and regulations implicitly required an employer to take active steps to notify its employees of its FMLA calculation method. “The only sensible reading of the regulations taken as a whole . . . is that an employer’s ‘selection’ of a calculation method must be an open rather than a secret act, necessarily carrying with it an obligation to inform its employees thereof.” Austin at 12 quoting Bachelder at 1128. The court further held that the calculation method should be included in an employee handbook or other documents concerning employee benefits or leave rights. If an employer fails to provide such notice, FMLA leave must be calculated in the manner which provides the most beneficial outcome for the employee requesting the leave, which in Austin’s case, was the “calendar year” method.

With respect to Austin’s claim, the court found that a summary of benefits form the employer routinely provided to its new employees that stated FMLA leave was “[m]easured by Rolling Year period (measured backwards from the date an employee uses FMLA)” constituted adequate notice to its employees of its FMLA calculation method. However, the court found that there was an issue of fact regarding whether Austin ever actually received the summary of benefits form. As a result, the court held that the employer was not entitled to summary judgment and that Austin could proceed to trial with her FMLA claim.

In the wake of Austin, all employers would be well-advised to review their handbooks and related documents provided to employees to confirm that their FMLA leave calculation method is clearly explained, and ensure that all employees have signed an acknowledgment that they received the handbook and any related documents.