MSPB Confusion Over FMLA Rights

Recent decisions demonstrate that the Merit Systems Protections Board is confused regarding the FMLA rights of federal sector employees.  The Board has repeatedly and incorrectly applied the wrong variant of the FMLA.  It has also erroneously cited to the OPM and DOL FMLA regulations interchangeably as if those regulations both applied to all situations.  That is simply not the case. 

There are four federal sector variants of the FMLA that apply to different segments of the federal workforce.  While identical in some areas, the variants are materially different in others.  As such, the federal sector FMLA variants are not interchangeable.  Application of the requirements of one variant of the FMLA may violate the FMLA rights of an employee covered by another FMLA variant.  To avoid FMLA errors, the Board needs to apply the correct FMLA standard. 

 

FMLA in the Federal Sector

There are four variants of the FMLA that apply to different segments of the federal workforce.  Title I of the FMLA, 29 U.S.C. 2601 et. seq., is enforced by the U.S. Department of Labor (DOL).  The U.S. Government is a covered employer for purposes of Title I.  29 CFR 825.108(a).  However, not all federal employees are covered by Title I.  Rather, Title I applies, essentially, to all non-civil service employees, including all Postal employees and civilians in the military.  29 CFR 825.109; 29 CFR 825.800(employee defined).

Title II of the FMLA applies to all federal civil service employees.  5 USC 6381 et. seq.  OPM has issued regulations to implement this FMLA variant.  5 CFR 630.1201-1211.  Civil service employees covered by Title II are specifically excluded from coverage under Title I.  29 USC 2611(2)(B)(i).    

Congressional employees are covered by the FMLA provisions of the Congressional Accountability Act (CAA), 2 USC 1301, 1312.  The congressional Office of Administration has issued regulations to implement the FMLA.   

Employees of the Executive Office of the President are covered by the FMLA provisions of the Presidential and Executive Office Accountability Act (PEOAA), 3 USC 401, 412.  Regulations have not been issued to implement the PEOAA FMLA provisions.   

The four federal sector variants of the FMLA are substantially similar in many instances. Regarding civil service employees, this is no surprise because Title II directed the OPM to issue regulations that, "to the extent appropriate, be consistent with the regulations prescribed by the Secretary of Labor to carry out title I" of the FMLA.  5 USC 6387.  The CAA has a similar provision.   

The DOL FMLA regulations served as the template for the OPM (and CAA) FMLA regulations.  OPM did not, however, adopt all of the DOL FMLA regulations.  Rather, in some instances OPM copied the DOL's language verbatim.  In other instances, however, OPM's FMLA regulations are materially different from the corresponding DOL regulations.  Because of this mixture, even if the DOL and OPM FMLA regulations applied to all federal employees (which they do not), the regulations are not interchangeable.   

At best, the DOL FMLA regulations can serve as persuasive authority on the meaning of OPM (and CAA) regulations in those instances where the regulations are identical.  Where OPM (and the Congressional Office of Administration) exercised their statutory authority to veer from the DOL language ("to the extent appropriate"), application of the interpretation given to the DOL regulation (by the DOL and courts) would appear to be questionable.    

Troubling MSPB Case Law

That brings us to some recent decisions of the Board addressing FMLA rights.  In Jones v. Dept. of Education, No. DC-0752-08-0102-I-1, 2008 MSPB LEXIS 360 (Jan. 23, 2008), the Board asserted that to be eligible for FMLA leave an employee must have been employed by the employer for at least 12 months and must have accrued at least 1250 hours of service during the previous 12-month period, citing 29 USC 2611(2).  This is part of the Title I eligibility standard.  The third Title I eligibility requirement is that the individual requesting leave be employed at a worksite where there are at least 50 employees within 75 miles.  29 USC 2611(2)(B)(ii). 

Under Title II, 12 months of civil service employment is the sole eligibility requirement.  5 USC 6381(1)(employee defined).  In Jones, the Board cited to the FMLA provisions of Title I and Title II.   

While it is certainly possible that an employee of the Department of Education is covered by Title I, it is unlikely.  In any event, the MSPB failed to find that Jones was that rare non-civil service employee of the Education Department.  Moreover, assuming Jones was a non-civil service employee, the Board's citation to the Title II statute and OPM FMLA regulations would not make any sense.

In Stribling v. Dept. of Education, No. DC-0752-08-0086-I-1, 2008 MSPB LEXIS 1384 (March 4, 2008), the Board similarly cited the OPM and DOL regulations interchangeably regarding the timing of an employee's obligation of the employee to request leave.  The Board should have first determined whether Stribling was a civil service or non-civil service employee.  Once that determination was made it could have cited to the correct FMLA standard, whether OPM or DOL.  The Board's reliance on the DOL regulations is all the more puzzling because the OPM regulations on the timing of notice issue are nearly identical to the cited DOL regulations. 

In Nelson v. U.S. Postal Service, No. CH-0752-08-0134-I-1, 2008 MSPB LEXIS 1288 (March 3, 2008), the Board cited Title II of the FMLA (Title 5) as the source of the postal employee's FMLA rights.  That is simply wrong.  See also Wallace v. U.S. Postal Service, No. DC-0752-07-0893-I-1, 2007 MSPB LEXIS 7278 (Dec. 18, 2007)(erroneously citing to Title II (Title 5) and the OPM regulations as the source of FMLA rights). 

These are but a few recent examples of Board confusion on federal employee FMLA rights.

Recommendation

To ensure that FMLA rights are protected the Board needs to apply the variant of the FMLA that actually applies to the appellant.  In the federal sector, FMLA rights, particularly those addressed in the OPM and DOL regulations, are not interchangeable.  Civil service employees are covered by Title II of the FMLA and the OPM FMLA regulations.  At best, interpretations of identical DOL regulations would be persuasive authority on the meaning of the OPM regulation at issue. 

The FMLA rights of non-civil service employees, including all Postal employees, are governed by Title I of the FMLA and the DOL regulations.  Citation to Title II of the FMLA is, therefore, not appropriate.  Because the OPM regulations were derived from the DOL regulations and not the other way around, citation to the OPM FMLA regulations is not even persuasive authority on the meaning of the DOL regulations.    

In every case involving FMLA rights, the first determination the MSPB should make is which variant of the FMLA applies: (1) Title I; (2) Title II; (3) CAA; or (4) PEOAA.  Once that determination is made, the MSPB can apply the correct FMLA regulations to determine whether the FMLA rights of the employee were violated.  To do otherwise, given the many significant differences between the federal sector FMLA variants, invites the deprivation of employee FMLA rights and/or the errant finding of an agency FMLA violation.