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Supervisors Be Careful What You Promise – Don’t Expand FMLA Coverage

By Marti J. Cardi, Chief Compliance Officer, Reed Group

A legal principle known as “equitable estoppel” can allow an employee to enforce a promise of benefits made by the employer and relied upon by the employee to his detriment.

A well-intended but ill-informed promise by a supervisor can have the unexpected effect of providing protected leave of absence beyond the requirements of the FMLA. A recent case illustrates the importance of training supervisors not to promise leaves of absence without first consulting Human Resources.

FMLA Bereavement Leave?
The FMLA does not in fact provide protected bereavement leave, but in Murphy v. FedEx National LTL, Inc., a supervisor’s promise of time off had a similar effect.

Susan Murphy, a former employee of FedEx, took approved FMLA leave to care for her ill husband. When he died unexpectedly on September 7, 2006, she took three days of company bereavement leave. Her supervisor contacted her on September 11 and informed her that her FMLA leave had expired on September 7 (the day her husband died). He asked how much more time off she needed. She requested an additional 30 days “to take care of things.”

Her supervisor told her this would be no problem and he would let Human Resources know. However, HR denied the leave and required the supervisor terminate Murphy for unexcused absences. Murphy sued, alleging interference with FMLA rights and estoppel. The trial court ruled that Murphy was not entitled to a trial on her claims, but the Eighth Circuit Court of Appeals reversed the decision and sent her case back to the trial court for a jury trial.

Did Murphy Provide Adequate Notice?
The FMLA requires an employee to provide enough information to the employer to show that she may need FMLA leave. The Eighth Circuit ruled that consideration of the totality of the circumstances could lead a reasonable jury to believe that FedEx had notice of Murphy’s FMLA request.

The statement that she needed time off “to take care of things” by itself would not be sufficient, but FedEx should have considered other facts of which it was aware: (1) Murphy’s husband, who had also worked for FedEx, died unexpectedly; (2) she was noticeably distraught in her conversations with her supervisor; (3) she told him that she was unable to work the night shift because it reminded her too much of her husband; and (4) Murphy made the request during the conversation with her supervisor when he told her that her FMLA leave (to care for her husband) had expired and asked whether she needed more time off.

Together, these facts could be considered adequate notice to FedEx of a request for FMLA leave.

Did Murphy Establish an FMLA Claim Based on Estoppel?
The Eight Circuit recognized the estoppel principle established by earlier cases: “[A]n employer who makes an affirmative representation that an employee reasonably and detrimentally believed was a grant of FMLA leave can be estopped [prevented] from later arguing that the employee was not in fact entitled to that leave…”

According to the Court, the supervisor’s statement that the requested 30-day leave would not be a problem, and that he would let HR know, could be construed as a promise of leave. The supervisor did not indicate there were any additional steps Murphy needed to take to have the leave request approved. A jury could find that Murphy, upon receiving an immediate affirmative response to her request for leave, reasonably believed that she had been promised the leave and was entitled to rely upon that promise.

This case illustrates the way in which courts can view facts in favor of the employee when determining whether the employee has met the requirements of the FMLA. The court ruled that Murphy was entitled to a jury trial, and under these facts, it is likely that a jury would find in favor of Murphy and award substantial damages against FedEx.

Lessons for Employers:
Supervisors need to be trained that even in the most sympathetic of circumstances, it is important to follow leave procedures. Always consult with an HR manager before making a promise of FMLA leave.

FedEx’s HR department takes away a lesson that they could have handled the situation better as well. For instance, they could have placed a call to Murphy to let her know that her leave was not in fact approved and provided her an opportunity to return to work or to support her leave request with appropriate medical documentation. This would have been a far wiser, less costly and less public alternative.

Murphy v. FedEx National LTL, Inc. (8th Cir. 2010)


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