Labor and Employment - Jerry C. Newsome and K. Alex Khoury

• Jurisdiction: United States,Federal
• Publication year: 2005
• Citation: Vol. 56 No. 4

Labor and Employmentby Jerry C. Newsome^* and K. Alex Khoury^**

This Article surveys notable developments in labor and employment law in the Eleventh Circuit from January 1 to December 31, 2004. During the survey period, the Eleventh Circuit Court of Appeals rendered notable decisions regarding the Family and Medical Leave Act ("FMLA")¹ and the Labor Management Relations Act ("LMRA").² Several district courts also weighed in during this survey period with significant rulings on the FMLA and the Equal Pay Act ("EPA").³

I. The Family and Medical Leave Act

Most of the notable employment law decisions rendered by the Eleventh Circuit this year concerned the Family and Medical Leave Act ("FMLA").⁴ In Walker v. Elmore County Board of Education⁵ the court of appeals addressed the issue of retaliation for pre-eligibility leave requests under the FMLA.⁶ Also, in Morrison v. Magic Carpet Aviation,¹ the court of appeals limited the definition of an "integrated employer" under the FMLA.⁸ Additionally, the United States District Court for the Middle District of Alabama handed down an interestingFMLA decision in Baldwin-Love v. Electronic Data Systems Corp.⁹ when it strictly construed the medical certification requirements of the FMLA.¹⁰

In Walker the Eleventh Circuit Court of Appeals considered the narrow issue of whether a pre-eligibility request for FMLA leave is protected under the FMLA's anti-retaliation provision when the leave would begin while the employee was still ineligible for FMLA leave but would continue after the employee became eligible.¹¹ Plaintiff in Walker was a teacher in the Elmore County school system. In 1999 plaintiff accepted a one-year employment contract, which commenced on August 9, 1999. In December of that year, plaintiff informed the principal of her school that she was pregnant and due to deliver in August of 2000. When plaintiff notified the principal that she was pregnant, she also inquired into what she needed to do to obtain maternity leave following the birth of her child. The principal told her she needed to submit a written request for leave to the school board. The principal recommended, however, that she hold off on requesting the leave until she knew whether the school board was going to renew her contract for the next school year. Plaintiff followed the principal's recommendation. On May 15, 2000, the school board informed plaintiff that her employment contract was not going to be renewed.¹²

Plaintiff brought suit against the board of education alleging both that she had been improperly denied maternity leave and that her contract was not renewed in retaliation for her FMLA leave request. The district court held that the board of education's denial of plaintiff's maternity leave was proper because plaintiff was not an eligible employee entitled to leave under the FMLA. Plaintiff had not worked for the school board for a twelve month period at the time she made her request for maternity leave, nor had she worked for at least 1250 hours during the twelve months prior to requesting her leave.¹³ Nevertheless, with respect to her retaliation claim, the district court held that "the FMLA protected [plaintiff] from retaliation for her maternity leave request" because '"almost all of her leave would have taken place during her FMLA-eligibility period.'"¹⁴

The Eleventh Circuit affirmed the district court's holding regarding the denial of maternity leave due to plaintiff's ineligibility.¹⁵ The court held that "[t]here can be no doubt that the request—made by an ineligible employee for leave that would begin when she would still have been ineligible—is not protected by the FMLA."¹⁶ Regarding plaintiff's retaliation claim, the court acknowledged that the "FMLA makes it unlawful for an employer to interfere with the attempt 'to exercise[] any [FMLA] right. . . . "'¹⁷ The court, however, held that under 29 U.S.C. Sec. 2612,¹⁸ "the right to leave is provided only to eligible employees."¹⁹ Consequently, the court reversed the district court and granted defendants' motion for summary judgment on plaintiff's retaliation claim, holding that because plaintiff's "request . . . did not constitute a protected attempt to obtain an FMLA benefit," her retaliation claim was without merit.²⁰ Notably, the court left for "another day" the question of whether a pre-eligibility request for post-eligibility FMLA leave that falls entirely within the post-eligibility period would be protected under the FMLA's retaliation provision.²¹

In Morrison the court of appeals examined what it means to be an employer, an integrated employer, and a joint employer under the FMLA for purposes of meeting the FMLA's threshold jurisdictional requirement.²² Plaintiff in Morrison was a pilot for Magic Carpet Aviation, Inc. ("Magic Carpet"), which is wholly owned by Amway Corp. ("Am-way"). Magic Carpet contracted with Orlando Magic Ltd., which is owned by RDV Sports, Inc. ("RDV"), to fly the Orlando Magic basketball team to games and other events around the country.²³

Morrison requested four weeks off from work to deal with clinical depression. His supervisor, however, only approved two weeks of leave. When Morrison later requested additional time off, he was terminated. Morrison sued Magic Carpet, Amway, and RDV for retaliation under the FMLA. The district court granted a motion for summary judgment in favor of Magic Carpet and Amway because it held that Morrison was ineligible for FMLA leave because Magic Carpet and Amway did notemploy at least fifty people within seventy-five miles of Morrison's worksite.²⁴ The court also granted a motion for summary judgment in favor of RDV, holding that RDV "was not Morrison's employer, integrated employer or joint employer" under the FMLA.²⁵ Morrison appealed the district court's ruling regarding RDV.²⁶ The court of appeals examined de novo the issue of whether RDV was Morrison's employer, integrated employer, or joint employer under the FMLA.²⁷

The court held that the test articulated in Welch v. Laney²⁸ was applicable to determine RDVs status as Morrison's employer.²⁹ The Welch test provides that when a court is considering whether an entity is an employer of a particular individual, the court must consider: "(1) whether or not the employment took place on the premises of the alleged employer; (2) how much control the alleged employer exerted on the employees; and (3) whether or not the alleged employer had the power to fire, hire, or modify the employment condition of the employees."³⁰ With regard to the first element of the Welch test, the court held that RDV was the owner of the worksite because RDV leased the airplane Morrison piloted from Magic Carpet when he was transporting Orlando Magic personnel.³¹ The lease agreement between RDV and Magic Carpet, however, gave RDV no rights "except to have its players sit back and be flown around."³² Because the court concluded the lease "did not give RDV any meaningful direct control over or in the worksite itself," the court held that the first prong of the Welch test did not comport to a determination that RDV was Morrison's employer.³³

The second prong of the Welch test, how much control the alleged employer has over the employee, was also insufficient to support a conclusion that RDV was Morrison's employer.³⁴ Morrison was required to wear an RDV identification badge, Orlando Magic ties, and an Orlando Magic parka, and he was required to attend an employee orientation at RDV. Morrison was also listed in RDVs staff directory as an employee.³⁵ The contract between Orlando Magic, Ltd. and MagicCarpet, however, specifically provided that '"all crew members,' the 'assignment of crew members to particular flights,' and 'directions to crew members to conduct flights,' would be under the 'exclusive control' of Magic Carpet."³⁶ In light of the clear contractual language giving Magic Carpet exclusive control over Morrison during his employment, the court determined RDVs control over Morrison was the indirect control of a customer over a service provider's employees rather than the direct control required to create an employer/employee relationship between RDV and Morrison.³⁷

The final prong of the Welch test, whether the alleged employer has the power to fire, hire, or modify the employment conditions of the employee, clearly did not support a holding that RDV was Morrison's employer.³⁸ Although RDV could exert significant influence over Magic Carpet, it had no authority to hire, fire, or modify the conditions of Morrison's employment.³⁹

Having concluded that RDV was not Morrison's employer, the court next considered whether RDV was an "integrated employer" of Morrison for purposes of satisfying the jurisdictional requirements of the FMLA.⁴⁰ To be an integrated employer, a company must be one of several companies that have "(i) Common management; (ii) Interrelation between operations; (iii) Centralized control of labor relations; and (iv) [A] [d]egree of common ownership/financial control."⁴¹ Although Morrison failed to present any evidence sufficient to satisfy the first three elements of the integrated employer test, the fourth element of the test clearly supported a conclusion that RDV was integrated with Magic Carpet because Amway and RDV shared a common owner, the DeVos family.⁴² Nevertheless, the court of appeals held that "[a]s a matter of law, we do not believe that common ownership of two corporations is enough for a jury to conclude that they were integrated into one operation for FMLA purposes."⁴³ Accordingly, the court held that RDV was not Morrison's integrated employer.⁴⁴

Finally, the court considered whether RDV and Magic Carpet were Morrison's joint employers under the FMLA pursuant to 29 C.F.R.Sec. 825.106(a).⁴⁵ For FMLA jurisdictional purposes, multiple employers can be an employee's joint employer:

(1) [w]here there is an arrangement between employers to share an employee's services or to interchange employees; (2)...