Jottings By An Employer's Lawyer

Sunday, January 16, 2005

Employer's Conduct As A Bar To Challenge Right to FMLA Leave

When Charles Sorrell's wife developed an eye condition he decided to retire to spend more time with her. Announcing his retirement, his replacement was selected and he helped train him. After he had quit working, but was still on the payroll using up accrued vacation, he learned that he might be entitled to take leave under the FMLA to care for his wife. Asking his employer, he found that he was eligible for such a leave and ultimately submitted a request for leave and a medical certification. The employer raised no questions about the certification or the basis for the leave and approved it.

When Sorrell's leave was up and he sought to return, he was told that there was a hiring freeze. When he raised the specter of the FMLA with its reinstatement rights, the company offered him another sales position, but unlike his old job he would have to travel overnight. Sorrell asked for his old position. When he did not receive it, he sued under the FMLA.

The employer challenged his right to the FMLA leave, claiming that his wife did not have a serious health condition and that he did not "care for her" as required by the FMLA. Sorrell countered that the employer was estopped from now challenging his right to the leave since it had not raised an objection at the time. The District Court, without reaching either of those arguments, held instead that Sorrell had relinquished his right to the specific job, or any job, by his announced retirement.

And the answer? To be decided -- as the 6th Circuit Court sends it back to the trial court to resolve the questions that it did not address. Sorrell v. Rinker Material Corp., (6th Cir. 1/14/04) [pdf] . While giving the trial court free rule to decide the issues as it wishes, the Court nevertheless pointed the specific areas to be addressed, and also pointed out how other courts had decided those questions. The issues (and suggested answers) -- was the employer estopped from now challenging the leave since it had granted it without raising any questions (other courts have so held) and was the employer precluded from challenging the leave because it failed to comply with certain procedures under the Act, particularly 29 C.F.R. § 825.305(d) which obligates an employer to advise an employee if a medical certification is incomplete and give them a chance to comply (other courts have held this as well.)

Although it does not specifically say so, the Court's decision would seem to imply that if the employer was barred from challenging the leave, the employee would have been entitled to the leave and re-instatement to his old position. But before we know the final answer - it's back to the district court.


Well I totally agree to that decision – if the employer had disputed the leave in the first place, then they would have a leg to stand on. As it is now, they should have no leg to stand on. Regardless of the employee's announcement of retirement, the employer should be held liable to keep him employed under his previous position because the employer never made any noises about his leave in the first place.

This is a typical situation of a corporate saying one thing and doing another. Clearly, they wanted him out of there, and thought the leave might buy them some time. At the very least, they could have called him while he was on leave and told him that they were thinking of filling his position. If I were a judge, I'd rule this in his favor straight away and tell the company to go get some decent values and ethics.
As far as I understand it, a person who has already filed his leave and has been granted such leave shall enjoy such privilege regardless of the hiring status. I think the company is after its own interests. In order to refuse what the employee has to receive some companies would often create a stir by investigating on the some personal matters in the life of the employee and use it in order to win back the service of the employee. That itself is against any human rights.
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