Let me introduce you to Phil, the Regional Sales Manager for Phenomenal Pharmaceuticals. Phil and Phenomenal are having an er um situation. One of Phil’s Sales Representatives, Sally, when she is not out making sales calls or meeting with customers, works from home, which is 100 miles away from Phenomenal’s headquarters (where Phil is ) and even further away from its other locations. Sally has a stellar performance record. She has generated loads of revenue for Phenomenal in the decade she has worked for them. Until roughly a year ago everything between Sally and Phenomenal was humming along very nicely. Sally started experiencing some respiratory issues. Her husband started experiencing some other health issues. Others on your team started making some comments about Sally’s health and some veiled references to her age (late 50’s). Sally asked for time off to deal with her and her husband’s medical issues. Phil told her to use her accrued paid time off. Sally was due to return to work and had also scheduled a call to discuss complaints of harassment and discrimination. Prior to the scheduled call Sally received her first poor performance evaluation ever — and then Phil informed her over the phone that Phenomenal was terminating her employment.
I’ll bet you’re not surprised to hear that Sally sued Phenomenal. In addition to the discrimination claims, Sally filed FMLA interference and retaliation claims. Phil is confident that the FMLA claims will go away quickly, because she does not work within a 75-mile radius of any Phenomenal office. Phil is in for a shock. Read on to see why…
(image from hydrocreditunion.com)
Let’s just really quickly review what makes an employer subject to FMLA. Yes, I know you’ve heard it before, but bear with me, OK? The employer must have 50 or more employees within a 75-mile radius. Why those specific numbers? Congress understood that otherwise the FMLA might impose too much hardship on very small businesses.
OK, what does this have to do with Phenomenal? Sally got time off as she requested. First, neither Phil nor anyone else at her job even considered that Sally might have rights under the FMLA, which also means she wasn’t advised of her rights, and her leave wasn’t designated as FMLA leave. Then she was fired while she was on leave and her co-workers made comments about her health issues. If Sally was entitled to FMLA leave, Sally would have valid FMLA interference and retaliation claims in addition to the age and disability discrimination claims.
Wait a minute. Can Sally be entitled to FMLA leave– or more accurately, can Phenomenal, with respect to Sally be subject to FMLA? Sally works from home with no other Phenomenal employees. Sally’s home is 100 miles away from Phenomenal’s headquarters and even further from other Phenomenal locations. How can Phenomenal, with respect to Sally be subject to FMLA? How can Sally assert any type of FMLA claim? This is Phil’s question. Phil is banking on Sally’s home location shielding Phenomenal from any FMLA obligations to Sally. Unfortunately, Phil does not really understand how this 50/75 rule applies, but we’re going to help him understand.
An employee’s home office may be his/her work site when considering other employment laws. For example, if Sally works in Maryland, then, in addition to federal employment laws, Maryland’s employment laws may apply to Sally. For FMLA purposes, however, Sally’s home is not her work site. The Department of Labor very clearly says so in the following regulation:
For employees with no fixed work site, e.g., construction workers, transportation workers (e.g., truck drivers, seamen, pilots), salespersons, etc., the work site is the site to which they are assigned as their home base, from which their work is assigned, or to which they report. For example, if a construction company headquartered in New Jersey opened a construction site in Ohio, and set up a mobile trailer on the construction site as the company’s on-site office, the construction site in Ohio would be the work site for any employees hired locally who report to the mobile trailer/company office daily for work assignments, etc.
You can find the full text of the regulation here.
The point is: It’s not the employee’s home office, but rather the office to which s/he reports that determines the count. Sally reports to Phil, and the office where Phil works. If there are 50 or more employees within a 75-mile radius of that office (assume for this discussion that there are), then Phenomenal is subject to FMLA — and in a lot of trouble.
By the way, this is a real case, I just changed some not-so-important details. The real case is Donohoe-Bohme v. Brinkman Instruments, decided by the US District Court in the District of Louisiana in 2016.
So here’s the bottom line: You can’t hide behind the fact that an employee telecommutes –either from home or elsewhere to escape the FMLA. So here’ s what I say to Phil (which many of you may have heard me say/write to others before): Don’t get cute!
Let’s stop here for now. See you next week!
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