More on Establishing Liability that Didn't Really Exist
Once again an employer has managed to become liable under a statute when it initially failed to meet the threshold number of employees required for coverage. Michael Fox points out that in a recent Sixth Circuit case, a court held that "it is possible that an employer with fewer than 50 employees within a 75 mile radius, could still find themselves "required" to grant FMLA leave, based on their conduct, even though not technically within the coverage of the statute." In other words, by treating all of the employees the same, even though the employer has some employees who are not otherwise eligible, the employer can become legally obligated to provide the benefits of the FMLA to those otherwise ineligible employees.