Fenwick Employment Brief - October 11, 2010

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The Ninth Circuit Court of Appeals in San Francisco recently addressed the question of whether and under what circumstances a new employer qualifies as a “successor in interest” to an old employer under the Family Medical Leave Act (“FLMA”). The distinction matters because an employee is not eligible for the protections of the FMLA until he or she has worked for a specific employer (including the employer’s “successor in interest”) for at least 12 months. In Sullivan v. Dollar Tree Stores, the court applied a list of eight factors and ultimately concluded that defendant Dollar Tree was not a successor in interest to the former employer, Factory 2-U, because there were not enough similarities between the two entities. Based on that finding, the Court held that a former employee of Factory 2-U who had been working for Dollar Tree for less than 12 months was not entitled to FMLA benefits.

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