Jottings By An Employer's Lawyer

Tuesday, October 28, 2003

The Fine Lines That Make The Difference In An FMLA Claim - 4th Cir. Says Employee On the Right Side

One of the pre-requisites of obtaining an FMLA leave is that the employee be employed for 12 months with the employer. The facts present a textbook case of fine distinctions making the difference. Kimberly Babcock started work for BellSouth on June 1. The following May 19th she took a leave of absence for a health condition. On May 22, she told her supervisor that her doctor was recommending that she be off for six weeks. On May 30th her doctor faxed that recommendation to Bell South. Thinking that her leave was approved for six weeks, she left town and did not return until June 9th. In her mail box were two letters from BellSouth informing her that leave was only authorized through May 27th, and that if she did not return to work on June 9th she would be terminated. Babcock called to discuss her situation and asked for more leave, either paid or unpaid. She was told that she was not eligible for leave since she had not worked for twelve months as required under the FMLA. When she did not return to work BellSouth true to their word terminated her, leaving the Rubik's cube to be sorted by the courts.

Both the district court which denied BellSouth's motion for summary judgment and its motion for judgment after the verdict in her favor of $91,000 and the appellate court saw things her way. True enough, she had not been eligible for FMLA leave when she initially left on May 19th. And the court agreed with the DOL regulations that eligibility must be determined at the time the leave begins. However, what was in question was her status between May 27th and June 9th. Although BellSouth argued she was on leave, its own records showed otherwise. She was only authorized for leave until May 27th. Thereafter the Court concluded she was an employee on unauthorized absence. With the key factor she was still an employee, now having past her first year anniversary. So when she again requested leave on June 9th, she was entitled to leave under the FMLA and her termination was in violation of that Act. Babcock v. BellSouth(4th Cir. 10/28/03) [pdf]. What a law exam question!


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