Law Firm Managing Partner’s Driver Held Exempt From FMLA Coverage

In Jackson v. Abrams, Fensterman, Fensterman, Flowers, Greenberg & Eisman, LLP, 2016 NY Slip Op 26300 (NYC Civil Ct. Kings Cty. Sept. 23, 2016), the court dismissed, on reconsideration, plaintiff’s claim that defendant was liable under the Family & Medical Leave Act (FMLA).

Plaintiff, who worked as the personal chauffeur for Howard Fensterman, alleged that the defendant (a law firm of which Fensterman was the managing partner) violated the FMLA and other laws by terminating him after he was hospitalized to insert a stent.

The court previously “noted that this case presented the novel issue of whether the work that Jackson performed solely for Fensterman, who was not individually sued, might still be attributable to the firm since Fensterman was the managing partner and principal of the firm.”

“To be an eligible employee under the FMLA, an employee must have been employed (i) for at least twelve months by the employer with respect to whom leave is requested … and (ii) for at least 1,250 hours of service with such employer during the previous 12-month period.” 29 U.S.C. § 2611(2)(A). (Emphasis added.)

Looking to the Fair Labor Standards Act (FLSA) for guidance, the court sought “to determine what proportion of Jackson’s work during the 12 month period had to be non-exempt in order for him to accrue 1250 eligible hours for FMLA coverage.”

It concluded:

Jackson does not dispute this Court’s finding that his primary duties were to drive Fensterman back and forth from work and take him to appointments during the day, all of which fell within the realm of a personal chauffeur. In fact, during oral argument on the motion for reconsideration, plaintiff’s counsel conceded that Jackons’s collection of checks for the firm constituted a minute portion of the otherwise exempt work that he performed for Fensterman. Additionally, plaintiff’s counsel admitted during oral argument, and plaintiff’s deposition clearly revealed that he rarely performed any xeroxing work for Lorraine Tetsky. As such, plaintiff has failed to prove that he engaged in so much work for the firm that he could not fairly be characterized as having been employed as a personal chauffeur for Mr. Fensterman. Thus, any work that Jackson performed that inured to the benefit of the firm was incidental to his overall work as the personal chauffeur to Fensterman and, under the aforementioned FLSA precedent, it is impossible for Jackson to prove that he met the requirement of having worked 1250 hours for a qualified employer – i.e. the firm. He therefore is exempt from coverage under the FMLA and the Court must grant defendant’s motion for summary judgment dismissing the complaint in its entirety.

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