Alaska Employment Law

If an employee is on the payroll for more than 12 months, but starts leave within the 12-month period, does he qualify under the federal Family Medical Leave Act?  The 9th Circuit, in an unpublished opinion, says, No.

the district court correctly concluded that Smith was not eligible for leave under 29 U.S.C. § 2612(a) and restoration to his position under § 2614(a) because he had not worked for CSK for at least 12 months and had not worked for at least 1,250 hours during the previous 12-month period. See 29 U.S.C. § 2611(2)(A). Smith was maintained on the payroll for more than 12 months, but his leave commenced before 12 months had passed. Therefore, under 29 C.F.R. § 825.110(d), he was not an “eligible employee.”

Smith v. CSK Auto, Inc., 2008 _______ (9th Cir. July 3, 2008)(unpub.)

Comment:  While the Court correctly states the broad rule, note that the employer may forfeit the right to contest eligibility under the described circumstnaces if it fails to promptly advise the employee that he is not eligible for FMLA leave:

If the employer fails to advise the employee whether the employee is eligible prior to the date the requested leave is to commence, the employee will be deemed eligible. The employer may not, then, deny the leave. Where the employee does not give notice of the need for leave more than two business days prior to commencing leave, the employee will be deemed to be eligible if the employer fails to advise the employee that the employee is not eligible within two business days of receiving the employee’s notice.

29 CFR § 825.110(d)(last three sentences)