In the case of Minard v. ITC DELTACOM COMMUNICATIONS, INC., Case no. 04-30230, (2006) the Fifth Circuit court of appeals held that an employer who had indicated to an employee that she was covered by the FMLA, but then later fired the employee, upon her return to work, when the employer later determined that it had less than 50 employees and was not covered by the FMLA could still be sued under the FMLA. The Fifth Circuit determined that the 50 employee threshhold was not a jurisdictional requirement but merely an element of a plaintiff’s claim. Therefore, an employee could bring suit under the FMLA arguing that she relied to her detriment upon the employer’s representations that she was covered by the FMLA and that the employer should be equitably estopped from denying FMLA coverage.
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