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Happily, many companies forced to downsize and terminate employees last year are now looking to expand in this stronger economy. When reviewing applications, be sure your decision on who to rehire is not affected by whether the employee took FMLA leave when previously employed by you.

The Family and Medical Leave Act (“FMLA”) establishes a minimum statutory requirement of 12-weeks of job-protected leave in a 12-month period for a serious health condition. The FMLA applies to employers who have at least 50+ employees within a 75-mile radius. Employees are eligible for FMLA leave if they (1) have a minimum of one year service, (2) a minimum of 1250 hours worked in the past year, and (3) work at a covered worksite. Now you are asking what this has to do with re-hiring employees. An employer cannot violate the FMLA if they gave a former employee leave last year, right? Wrong!

If your decision not to rehire a former employee is based on their taking leave under FMLA, you may have violated the anti-retaliation provision of the FMLA. That was the very issue before the 11th Circuit Court of Appeals in Smith v. Bellsouth Telecommunications, Inc. There, a former Bellsouth employee, Smith, claimed he was not rehired because he used FMLA leave during his earlier period of employment. Though Bellsouth contended he was not an “employee” under the FMLA and therefore could not bring this lawsuit, the court disagreed holding that Smith’s claim was valid under the FMLA’s anti-retaliation provision.

The court held that the term “employee” in the enforcement provision of the FMLA was ambiguous. The court then looked to the Labor Department’s regulations interpreting the FMLA which prohibited employers from discriminating against employees or prospective “employees” who have used FMLA leave, and prohibited employers from using “the taking of FMLA leave as a negative factor in employment actions, such as hiring. The court also noted that other employment statutes, such as Title VII and the Fair Labor Standards Act, define “employee” very broadly and provide protection to applicants, employees and, indeed even former employees. The very purpose of many of the employment statutes, the court wrote, would be thwarted if protection from retaliation were not provided to those at all stages of employment, protecting job applicants all the way through the post-employment reference stage.

Smith’s termination forms indicated he was ineligible for rehire based on “use of FMLA and other reasons.” While that simple written notation is a landmine on many levels, it did one thing in this case – it provided enough evidence to help Smith survive a motion for summary judgment and go forward with his case. Accordingly, the 11th Circuit held that the district court should not have granted Bellsouth’s motion for summary judgment on Smith’s retaliation claim.

The lesson learned from that case is simple – an applicant’s use of FMLA leave when previously employed by your company may not be considered in determining their eligibility for rehire.

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