An employee was told before
she underwent surgery that she was eligible to take FMLA
leave. Later the employer discovered it was not subject
to the FMLA because it had fewer than 50 employees at
or within 75 miles of the worksite. The employee was then
fired for being absent.
In court, the employee’s rights hinged on whether the
50-employee limitation was an element of an FMLA claim
or whether the court would be given jurisdiction to hear
the case.
The Fifth Circuit ruled in Minard v. ITC Deltacom
Communications that the 50-employee requirement is
an element of a claim and not jurisdictional.
The Fifth Circuit decided that the employer had made a
definite representation to the employee that she was eligible
under the FMLA and that the employee reasonably relied
upon that representation in taking leave and undergoing
the surgery. As a result, she was protected by the FMLA
and could not legally be discharged.
