Family Medical Leave Act applied to this employer who employed more than fifty employees within a 75-mile radius. Therefore, once the employee informed the employer that he needed time off to be with his wife, for birth of a child, to care for the employee’s spouse, son, daughter, or parent with a serious health condition, the employer has an obligation to determine if the employee is eligible for FMLA leave.

FMLA regulations provides: “When an employee requests FMLA leave, or when the employer acquires knowledge that an employee’s leave may be for an FMLA-qualifying reason, the employer must notify the employee of the employee’s eligibility to take FMLA leave within five business days, absent extenuating circumstances.” 29 CFR §825.300(b)(1).

Here the employer failed to conduct any analysis whatsoever to determine if the employee was eligible under FMLA. Furthermore, the employer failed to advise the employee in writing of his eligibility under the FMLA.

FMLA’s new regulations provide: “Failure to follow the notice requirements set forth in this section may constitute an interference with, restraint, or denial of the exercise of an employee’s FMLA rights. An employer may be liable for compensation and benefits lost by reason of the violation, for other actual monetary losses sustained as a direct result of the violation, and for appropriate equitable or other relief, including employment, reinstatement, promotion, or any other relief tailored to the harm suffered (see §825.400( c)).”

As a result of the employer’s failure to provide notice to the employee, the employer was liable under FMLA because it interfered with the employee’s FMLA rights.

Under federal and California law a party may be estopped from pursuing a claim or defense where: (1) the party to be estopped make a misrepresentation of fact to the other party with reason to believe that the other party will rely on it; (2) the other party relies upon it; and (3) to his/her detriment.

The law has long been that where a party has a legal duty to speak, silence can constitute an affirmative “misrepresentation.” With respect to FMLA, an employer must notify an employee who plans to take medical leave whether his/her proposed leave is covered by the FMLA before the employee takes the leave. 29 CFR §825.110(d). Accordingly, an employer who remains silent when its employee announces that he plans to take medical leave is effectively misleading that employee into believing that she is protected by the FMLA.

Here, the requested for time off to be with his wife who required an emergency c-section and the Store Manager granted his request. Therefore, the Store Manager misrepresented to the employee that he was eligible for leave under FMLA/CFRA. The employee did not know what FMLA and/or CFRA are and what the eligibility requirements for FMLA/CFRA are. The employee relied on the Store Manager misrepresentation to his detriment in that when the employee returned from his leave, he was terminated by the employer. In fact, the employer’s human resources personnel testified at her deposition that it was not justified for the Store Manager to terminate the employee’s employment based on job abandonment, if the Store Manager had granted him time off to be with his wife and newborn child.