In Cox v. True North Energy, LLC, 524 F.Supp.927 (N.D.Ohio 2007), an employee who had worked for True North from September 3, 2001 until May 8, 2006 and then again from June 30, 2006 until November 2006 brought suit under the FMLA after she took medical leave during her second term of employment for treatment of cancer.
True North originally stated to her (before her leave) that she could return to work after her medical leave. True North was anything but true to its word as it refused to return Cox to work upon her attempt to do so. It later terminated her employment.
True North argued that Cox was not an eligible employee because she did not satisfy the FMLA’s requirement that she have worked 12 months for True North prior to taking the leave. True North claimed that Cox could not aggregate her two periods of employment with True North to satisfy the 12 month requirement.
An eligible employee, as defined by the FMLA, is “an employee who has been employed (i) for at least 12 months by the employer with respect to whom leave is requested … and (ii) for at least 1,250 hours of service with such employer during the previous 12-month period.” 29 U.S.C. § 2611(2)(A).
The district court looked at several sources for advice as to how to rule:
1 – In the case of Mulcher v. Dunlap Memorial Hospital, 485 F.3d 854 (CA6 2007), an employee tried to meet the 1250 hour requirement by tacking on bonus hours to the employee’s actual hours of service. The court held that bonus hours did not constitute “hours of service” for purposes of determining FMLA eligibility. The Mulcher court did not consider the question of whether an employee’s employment need be continuous to satisfy the 12 month requirement.
2 – Other district courts had held that an employee could aggregate periods of employment with the same employer to meet the 12 month requirement. Bell v. Prefix, Inc., 422 F.Supp.2d 810, 813 (E.D.Mich.2006) (holding that “[t]he plain language of the statute does not … support defendant’s contention that the 12 months must be continuous”); Mitchell v. Continental Plastic Containers, Inc., No. C-1-97-412, 1998 U.S. Dist. Lexis 21464 (S.D.Ohio March 27, 1998), adopting1998 U.S. Dist. Lexis 21465 (S.D.Ohio March 3, 1998) (finding that the plain language of the statute does not require a plaintiff to work 12 consecutive months to be an FMLA-eligible employee).
3 – One federal circuit court had so held as well – Rucker v. Lee Holding Co., 471 F.3d 6, 13 (1 st Cir.2006)(finding that regulations promulgated by US Department of Labor establish that previous periods of employment do count).
4 – Employers should not be able to employ employees for less than 12 months at a time merely to avoid FMLA obligations/coverage either.
Based on these authorities, the court ruled that an employee can aggregate various periods of employment with the same employer in order to meet the 12 month eligibility requirement of FMLA.
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