March 30, 2016
1. FMLA Requirements / Eligibility.
Only if an employer falls within the definition of a “covered employer” pursuant to 29 CFR § 825.104, is it required to provide unpaid family or medical leave to its employees who meet the employee eligibility requirements under the FMLA.
a. “Covered Employer” - Any person (or entity) engaged in commerce or in any industry or activity affecting commerce who
employs 50 or more employees for each working day during each of 20 or more calendar work weeks in the current or preceding
calendar year.
b. “Employee” includes any employee within the United States or United States territories who:
(1) is on the payroll;
(2) is on a paid or unpaid leave of absence (not layoff); or
(3) is a leased or temporary employee from an agency.
*NOTE: Once an employer meets the 50 employees / 20 weeks threshold, it is covered by the FMLA for the remainder
of that year and the following year.
c. “Employer” includes:
(1) any person who acts, directly or indirectly, in the interests of an employer to any of the employees of such employer;
* This provision provides individual liability for officers or agents.
(2) any successor in interest of an employer; and
(3) any “public agency,” as defined in the FLSA.
2. Eligible Employees.
a. Employee of a covered employer who:
(1) has been employed by the employer for at least 12 months before the leave commences (the 12-month period need not
be consecutive);
(2) has worked for at least 1,250 hours during the 12-month period immediately preceding the commencement of the
leave; and
(3) is employed at a worksite where 50 or more employees are employed by the employer within 75 miles of the worksite (determined at the time the employee gives notice of the need for leave). On the issue of the 75 miles, the case of Bellum v. PCE Constructors, Inc., 407 F.3d 734 (5th Cir. 2005), upheld the DOL regulation, 29 C.F.R. § 825.111(b), on how to measure the 75-mile distance by clarifying that it is to be measured by driving distance. In Bellum, the court found that the plaintiff was not covered by the FMLA because he was employed at a worksite with less than 50 employees and because the company did not have 50 employees within 75 miles of his worksite. In making this finding, the court relied on the fact that the driving distance, on public roads, to the nearest worksite was approximately 88.5
miles.
b. Whether an employee has worked the minimum 1,250 hours of service is determined according to the principles established under
the Fair Labor Standards Act (FLSA) for determining compensable hours of work. See 29 CFR Part 785.
(1) The determining factor is the number of hours an employee has worked for the employer within the meaning of the
FLSA. The determination is not limited by the employer’s methods of recordkeeping or by compensation agreements
that do not accurately reflect all of the hours an employee has worked for or been in the service of the employer. Any accurate accounting of actual hours worked under the FLSA’s principles may be used.
(2) In the event that an employer does not maintain an accurate record of the hours worked by an employee, including
employees who are exempt from the FLSA’s requirement that a record be kept of their hours worked (e.g., bona fide executive, administrative, and professional employees as defined in FLSA Regulations, 29 CFR Part 541), the employer has the burden of showing that the employee has not worked the requisite hours. (a) In the event that the employer is unable to meet this burden, the employee is deemed to have met this test. See also § 825.500(f). For this purpose, fulltime teachers (see § 825.800 for the relevant definition) of an elementary / secondary school system, institution of higher education, or other educational establishment / institution are deemed
to meet the 1,250 hour test. An employer must be able to clearly demonstrate that such an employee did not work 1,250 hours during the previous 12 months to claim that the employee is not “eligible” for FMLA leave.
c. The employer must advise the employee of his or her eligibility. If employer fails to inform the employee before the requested leave
that he or she is ineligible for leave, the employee will be deemed eligible for leave. Example: Suppose in September employee (A) tells her employer (B) that she will need to take leave for the birth of her child in March. As of September, A has only worked 8
months and 1000 hours for B. B must confirm whether or not A will be eligible for leave under the Act; if B fails to tell A whether or not she is eligible, A will be deemed eligible to take the leave. Additionally, if in September A worked at a site that had 60 employees
within 75 miles, but in March there were only 40 employees within the range, she is still eligible for leave under the Act.
3. WFMLA “Covered Employer.”
a. Under the Wisconsin FMLA (WFMLA), a covered employer is a person (or entity) engaging in any activity, enterprise, or business
in Wisconsin employing at least 50 individuals on a permanent basis.
4. WFMLA “Eligible Employee.”
a. Under WFMLA, an eligible employee is one who has been employed by the employer for 52 consecutive weeks and has been paid for 1000 hours in the preceding 52 weeks.
b. This means, an employee shall be deemed to have worked for the employer for at least 1000 hours during the preceding 52-week
period, if the number of hours actually worked in that period plus the number of hours for which the employee was paid pursuant to a
regular policy of paid vacation leave, sick leave, or other paid leave equals at least 1,000 hours.