The Family and Medical Leave Act (“FMLA”) allows eligible employees to take up to 12 weeks of medical or childcare leave – if certain conditions are met. One of those conditions requires “50 or more employees are employed by the employer within 75 miles of [the employee’s] worksite.” Most of the time, it is fairly easy to determine where the employee’s “worksite” is located, and whether there are 50 or more employees nearby. But in some cases this can be tricky. Specifically, where is the worksite for someone who works from home? Today’s article addresses the FMLA and remote workers.
The number of remote workers is, unsurprisingly, near an all-time high. According to a recent Gallup poll, nearly half of employees now work from home at least part of the time. When limited to white-collar workers only, the figure is 67%. These numbers are obviously elevated due to Covid, and are slowly coming down from all-time highs in 2020. But even in a post-pandemic world, the reality is that remote work is here to stay.
Vanessa Landgrave does not have a home office; she is a different kind of remote worker. Ms. Landgrave is a skilled laser surgical tech who worked for a company called ForTec Medical. Ms. Landgrave had no fixed worksite, and traveled throughout the country on temporary assignment assisting with procedures at hospitals or other facilities on an as-needed basis. Ms. Landgrave asked for FMLA leave to care for her ailing mother; ForTec denied her leave request and fired her. A lawsuit followed – Landgrave v. ForTec Medical.
ForTec filed a motion for summary judgment to dismiss the case. It argued that there were under 50 employees within 75 miles of Ms. Landgrave’s worksite which (if true) would mean that the FMLA does not apply. The critical question is: where is Ms. Landgrave’s “worksite?” She lived in Hewitt, Texas, but there was no ForTec facility there. In fact, there were only about 20 ForTec employees spread throughout all of Texas. ForTec’s workforce was made up almost entirely of remote workers who traveled on assignment, and it appears that the only real ForTec “worksite” was located at its Hudson, Ohio headquarters, where 65 employees worked.
The FMLA regulations are very clear in stating that Ms. Landgrave’s personal residence is not a “worksite.” That regulation states: “An employee’s personal residence is not a worksite in the case of employees, such as salespersons, who travel a sales territory and who generally leave to work and return from work to their personal residence, or employees who work at home, as under the concept of flexiplace or telecommuting.” Instead, three possible locations may qualify as a worksite: (1) her “home base,” (2) the site that assigned her work, or (3) the site to which she reported. The question in Landgrave was whether the Ohio headquarters qualified under any of those provisions. Notably, these provisions are connected by an or, which means Ms. Landgrave only had to show that any one of them applied to establish FMLA coverage.
The parties agreed that Hudson, Ohio was not her “home base,” in fact, Ms. Landgrave had never even physically visited the Hudson headquarters. That provision clearly did not apply.
The second provision is whether Hudson was the “site that assigned her work.” ForTec assignments are created through an online “centralized system” where customers log in and create assignments. Those assignments are then sent to ForTec employees, by a worker in headquarters, through the corporate smartphone app. A supervisor (here, Alvin Cooper) then directs the assignment to a specific employee. Landgrave, however, argued that Cooper did not actually make assignments but acted as a “mere conduit” to assignments which were actually generated in Ohio. The court found the evidence unclear on this point, with arguments going either way, and determined these issues could only be resolved by the jury.
The same was true as to the third provision, which asks whether Landgrave “reported” to Cooper or to the Hudson headquarters. It was undisputed that “Cooper did not review reports from Landgrave, nor did she send any reports to him at all.” Instead, her post-assignment reports were sent to headquarters. The parties disagreed as to Cooper’s authority to discipline Landgrave; ForTec claimed he had such power (at least in theory) while Landgrave countered that, in reality, he never gave her any disciplinary warning or any kind of employment assessment/evaluation.
In the end, the court found that there were disputed issues of fact between the parties, so the question of Landgrave’s “worksite” would have to be resolved by a jury. ForTec’s motion for summary judgment was therefore denied.
The court granted Ms. Landgrave’s cross-motion for summary judgment as to a “good faith” defense. Under the FMLA, an employer who pleads good faith does not avoid legal liability entirely, but it can avoid certain statutory penalties. However, the good faith defense is an “exceptional one,” and an offending employer “faces a substantial burden” in invoking it.
Here, ForTec claimed good faith based on its HR worker’s belief that the FMLA didn’t apply to Ms. Landgrave. ForTec admitted that it did not contact an attorney or perform any research to determine how the FMLA applied to remote workers. The only document ForTec reviewed was the company handbook which (in addition to not being the law) was silent on the question of remote workers. In short, ForTec simply assumed that remote workers like Ms. Landgrave were not covered by the FMLA, and denied her leave on that basis with “no analysis or discussion.” That is not good enough. The court therefore granted Ms. Landgrave’s motion and struck the good faith defense, thus raising the possibility of significant statutory penalties.
We will never how a jury would have resolved these questions because, just a few days after the court issued its ruling, the case settled and the trial was cancelled. Nevertheless, the Landgrave opinion remains as an important reminder that remote workers do have rights under the FMLA, an issue which will arise ever more frequently as remote work grows increasingly common.