Legal Issues: Pitfalls in the Family and Medical Leave Act By Frank C. Gulin All employers with 50 or more employees within a 75-mile radius, including government contractors, should be aware of the requirements of the federal Family and Medical Leave Act. (Companies with fewer than 50 employees should note that some state laws cover smaller employers.) The FMLA, with its voluminous and detailed regulations, is extremely employee-friendly and is strewn with pitfalls for employers. The FMLA’s requirements for intermittent leave, and its relationship with the Americans with Disabilities Act, could be the subject of many articles. In addition, legislation was recently passed to require FMLA-covered employers to provide family military leave. The Department of Labor is in the process of preparing regulations to govern this new form of FMLA leave. Of particular concern to contractors are the provisions of the FMLA governing successor employers. Generally, employees are only eligible for FMLA if they have worked for the employer for at least a year and have worked at least 1,250 hours during the 12 months preceding the leave. However, where an employer is a “successor in interest” to another employer, the employee’s tenure with the predecessor is counted in determining their eligibility for leave. This issue arose in the federal contracting context in Cobb v. Contract Transport, Inc., 452 F.3d 543 (6th Cir. 2006). In Cobb, the employer, Contract Transport, won a government contract with the U.S. Postal Service and hired many of the predecessor’s employees, including Mr. Cobb. Mr. Cobb had worked for the predecessor for three years. After working for Contract Transport for a few months, Mr. Cobb underwent surgery and was unable to report to work. Contract Transport terminated his employment due to his unavailability. Mr. Cobb sued under the FMLA, arguing that he was eligible for FMLA leave despite his short tenure at Contract Transport. The federal Court of Appeals for the Sixth Circuit agreed with Mr. Cobb, holding that his employment with the predecessor counted in calculating his eligibility for leave. The court held that there need not be any transfer of assets or merger for successor liability to apply. The court also noted that the USPS placed the contract up for bid every two years, and reasoned that permitting new contractors to discount their employees’ prior service would circumvent the purposes of the FMLA and would give new bidders an unfair competitive advantage. The court stated, “In reality, it is as if Plaintiff works for the USPS and not for one particular trucking company. Only the management, not the job, has changed.” In determining whether an employer is a covered successor under the FMLA, courts examine a number of factors, including whether there has been a substantial continuity of the same business operation, use of the same plant, continuity of the work force, similarity of jobs and working conditions, similarity of supervisory personnel and similarity of products and services. Based on these factors, many federal contractors may be deemed to be successors for FMLA purposes. Based on the decision in Cobb, contractors should be aware that employees who worked for a predecessor may be entitled to have their prior service counted for FMLA purposes. This will obviously present problems for many successors, who may not have access to information as to the hours worked or leave used by the employees of the predecessor. If possible, these issues should be addressed in contract negotiations. In the absence of detailed information as to the hours worked by predecessor employees, contractors may wish to adopt a conservative approach. Frank C. Gulin is senior counsel at the Washington law firm Pargament & Hallowell PLLC, practicing in the areas of employment and labor law.