Grace v. USCAR and Bartech Technical Services, LLC, — F.3d —-, 2008 WL 782470 (C.A.6 (Mich.)) - 6th Circuit made determinations on several FMLA issues.

1 - Whether two employers could be deemed single employer under integrated employer test - in this case, they could not as they didn’t have common management, integrated operations, had no centralized control of labor relations and were not subject to common ownership or financial control.

2 - Whether two entities could be a joint employer for purposes of satisfying numerosity requirements of FMLA - court found that two entities were a joint employer where staffing agency provided firm’s specialized technical staff and acting in firm’s interest by managing technical employee and ensuring firm’s needs were met.

3 - Which employer was primary employer and which was secondary employer of employee requesting FMLA leave - in the case, the staffing agency was the primary employer.

4 - Whether notice to primary employer of FMLA leave constituted notice to both employers - notice to primary employer constitutes notice to both employers.

5 - Whether employee set out failure to reinstate claim under FMLA;

6 - Whether staffing agency that bid on and took over placement agency’s contract became a successor in interest under FMLA - staffing agency did in this case.

7 - Whether employee’s working hours at predecessor counted towards the 12 month FMLA requirement - as staffing agency had become a successor in interest, employee’s time with predecessor would count towards her FMLA eligibility.

Baker v. Hunter Douglas, Inc. 2008 WL 744734 (C.A.3 (N.J.))

Employee alleged that employer violated FMLA by failing to reinstate her job after she came back from FMLA leave; however, employee could not show that she could perform essential functions of her former position at time of expiration of her FMLA leave (could not work full time) - failure to reinstate job did not violate FMLA.

Ney v. City of Hoisington, Kansas, 2008 WL 324203 (C.A.10 (Kan.))

Use of sick leave did not implicate FMLA (in order to establish retaliation claim and required protected activity) especially when employee insisted at time of taking sick leave that FMLA did not apply.

Employee waived interference claim under FMLA by not including it in pretrial order.

Four years passing between firing and leave taken destroyed any causal connection between the two events.

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