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Court Finds No Ambiguity in Statutory Definition of Eligibility
Other Courts May Follow, but What about the DOL?
Did you know that the DOL regulations say that if you fail to notify
employees of their ineligibility for
FMLA leave, they then are
automatically made eligible? Fortunately for employers, the courts
are not agreeing with this rule.
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Here’s a fact that challenges the
imagination of even the most seasoned
Family and Medical Leave Act (FMLA)
expert: the Department of Labor (DOL) regulations penalize employers
that do not give employees reasonable notice of their ineligibility
for FMLA leave by making the workers eligible. So how can the DOL,
the federal agency responsible for creating these regulations, get
away with extending FMLA eligibility when the Act clearly limits
it? According to a recent decision by the Eleventh Circuit Court of
Appeals, it can’t. In Brungart v. BellSouth Telecommunications
Inc., No. 99-14472 (10/24/00), the court found part of section
825.110(d) of the FMLA regulations to be invalid. The court’s
decision delivered a stinging criticism of the DOL’s regulation and
accused the agency of pursuing its own policy initiatives beyond the
clear limits of the Act. Since this is the second circuit court to
invalidate that section, (the Seventh Circuit Court of Appeals found
it invalid July 2000), chances are good that other circuit courts
will follow the decision.
Employee Clearly Not Eligible for Leave under the FMLA
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In this case, an employee applied for
FMLA leave to care for her seriously ill mother two months after she
had returned to work from almost two years on leave. She had not
worked the necessary 1,250 hours in the previous 12-month period as
required by the FMLA statute. The employer denied her FMLA leave a
month later, after she had already taken several weeks of leave. In
addition, she was disciplined for missing work and for not calling
in every day during the leave. She was then terminated, in part,
because of the absences related to the leave she took for her
mother’s illness.
The employee sued, claiming that she
should have been protected by the FMLA since the employer did not
notify her of her ineligibility within two days, as required by
section 825.110(d) of the regulations. The applicable part of
section 825.110(d) states that “the employee will be deemed to be
eligible [for FMLA leave] if the employer fails to advise the
employee that the employee is not eligible within two business days
of receiving the employee’s notice.” The lower court found the
regulation to be unconstitutional since it “converts ineligible
employees to eligible employees,” and the employee appealed to the
Eleventh Circuit.
Court Finds No Ambiguity in Statutory Definition of Eligibility
The main issue for the Eleventh
Circuit to consider was whether the DOL could create a new criterion
for eligibility since the employee did not meet the Act’s statutory
eligibility requirements. As a general rule, an agency is
authorized to implement regulations to explain any ambiguities
created by a statute. However, as the court pointed out many times,
the FMLA statute is “perfectly clear” in its limitation of
eligibility. The court further noted that Congress could have
conferred the right to family medical leave on any employee who did
not receive a prompt response from her employer regarding her
request for leave, but Congress chose not to. So, instead of
explaining ambiguities, the DOL “attempted to pry apart the clear
words of the act in order to create a gap into which it can wedge
its policy preference.” The court attributes the DOL’s attempted
policy expansion to its motive of furthering the goals of the FMLA
by “forcing employers to respond to leave requests within a
reasonable period of time.” However, it found that the agency “has
gone too far” when it attempts “to improve legislation by altering
the basic coverage provisions that Congress has written into law.”
Accordingly, the court declared that section of the regulation to be
an invalid extension of the DOL’s authority.
Other
Courts May Follow, but What about the DOL?
So far, this decision is only the
second appeals court ruling to address the regulation, and it
applies only to employers in states covered by the Eleventh Circuit
(Alabama, Florida, and Georgia). The Seventh Circuit (Illinois,
Indiana, and Wisconsin) also declared the same section invalid
earlier this summer in Dormeyer v. Comerica Bank, 223 F.3d 579 (7th
Cir. 2000). Arguably, if you live in any of these states, you do
not have to give employees notice of their ineligibility for FMLA
leave. However, you should be aware that the DOL is likely to
continue upholding the regulation until Congress or additional
appeals courts address its validity. In addition, several lower
federal courts also have dealt with the issue, but with conflicting
results. Therefore, since the DOL is the agency to review any FMLA
complaint, your safest bet is to follow the regulations and notify
employees of their ineligibility promptly. Otherwise, you will risk
having to defend your position in court.
As an interesting side note, this
decision is the second from the Eleventh Circuit to invalidate an
FMLA regulation. Last year, in McGregor v. Autozone, 180 F.3d 1305
(11th Cir. 1999), the court overruled the DOL regulations and
determined that an employer does not have to give an employee
written notice when he is on FMLA leave in order to count the time
against the employee’s 12-week entitlement. Again, this development
is interesting, but a less risky policy is to follow the DOL
regulations until the issues are clarified further. The Editors
will continue to watch the decisions for further guidance.
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