by Michael Fox
Although all employers with more than 50 employees are covered by the FMLA, whether or not an individual employee is entitled to rights is based on other criteria. Among those who are not eligible employees, "any employee of an employer who is employed at a worksite at which such employer employs less than 50 employees if the total number of employees employed by that employer within 75 miles of that worksite is less than 50.” 29 U.S.C. § 2611(2)(B)(ii). Sandra Humenny was one such employee.
Yet, when she was terminated and felt that it was in part because she had expressed a need to take care of her sick mother, she filed a suit claiming, among other things, that she had been retaliated against for attempting to exercise rights under the FMLA. Her employer challenged her claim, arguing that in order to bring a cause of action for FMLA retaliation, she must be an eligible employee. Her argument -- since she was dismissed her for “attempting” to assert rights to which she, in good faith, believed she was entitled under the FMLA she should be allowed to sue. After all the retaliation provision refers to 'individuals' not 'employees.' Nice try, but wrong, said the Court, agreeing with the employer that to bring a suit for FMLA retaliation one must be an eligible employee. Humenny v. Genex Corp. (6th Cir. 12/8/04) [pdf].