To establish a claim of interference with rights under the FMLA, an employee must ordinarily demonstrate that he or she was entitled to FMLA leave. However, a recent decision by the Eighth Circuit Court of Appeals confirms that by affirmatively telling an employee that her leave is protected by the FMLA, an employer may waive its right to contest the employee's entitlement to leave. Murphy v. FedEx National LTL, Inc. (.pdf).
Does an employee have the right to take FMLA leave and be restored to the same or equivalent position even though the employer does not employ 50 employees and is not covered by the FMLA? The answer may depend on the particular court hearing the case, as evidenced by a recent federal appellate court decision. The Sixth Circuit Court of Appeals recently held that an employer is not precluded from arguing that its former employee was ineligible for FMLA leave even though the employer previously led the employee to believe he was eligible for FMLA leave and later provided such leave. Dobrowski v. Jay Dee Contractors (pdf).