The Tenth Circuit in Hackworth v. Progressive Casualty Insurance Co., No. 05-6198, 2006 U.S. App. LEXIS 28179 (10th Cir. Nov. 14, 2006) concluded that surface miles was the proper measure for determining whether an employee met the eligibility requirement that s/he work at a site with at least 50 employees within 75 miles. In so doing, the court rejected the argument that the 75 miles should be measured in "as the crow flies," i.e., in linear miles and not by surface miles. The decision found that Section 825.111(b) of the DOL FMLA regulations (which uses surface miles) was valid.
Hackwork worked at Progressive's Norman, Oklahoma worksite. Progressive also had employees at a worksite in Oklahoma City. Progressive admitted that the Oklahoma City site was 31.47 surface miles from the Norman site. At all relevant times, the Norman and Oklahoma worksites employed 47 employees. Progressive also employed 3 employees in Lawton. The Lawton worksite was 75.6 surface miles and 67 linear miles from the Normal worksite. Whether Hackworth was eligible for FMLA leave depended on whether the Lawton was included in the calculation.
Hackworth argued that linear miles was the appropriate measure for determining how many employees were employed within 75 miles of the employees worksite. In so doing, she challenged the validity of Section 825.111(b) of the DOL FMLA implementing regulations, which directs that surface miles be used for this calculation. Hackworth relied on references in the House and Senate Reports accompanying the FMLA that an employer employ at least 50 people "within a 75 mile radius." She argued that the term radius suggests that Congress intended that linear rather than surface miles be used. The Tenth Circuit disagreed.
In determining the validity of the use of surface miles by the DOL in Section 825.111(b), the Court applied the standard first articulated by the Supreme Court in Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 81 L. Ed. 2d 694 (1984). The Chevron analysis is a two-step process. First, the court looks to whether Congress directly spoke to the precise question at issue by examining the statutory text, history, and purpose. If congressional intent is clear, the query ends. If not, courts proceed to the second step of the Chevron analysis and look to whether the agency's answer is based on a permissible construction of the statute. Courts uphold an agency's construction of a statute it administers so long as it is not arbitrary, capricious, or manifestly contrary to the statute itself.
The Tenth Circuit initially found that Congress did not expressly indicate in 29 USC 2611(2)(B)(ii) how one should measure the geographic proximity of two distant worksite. It found the term "within 75 miles" ambiguous on the point. The court next determined that Congress did not clearly intend that the geographic proximity of two worksites was to be measured in linear miles. The court found that, given the purpose of the 50/75 provision, Congress just as likely intended that a surface measurement be used. The 50/75 provision was specifically designed to accommodate employer concerns about the difficulties an employer may have in reassigning workers to geographically separate facilities because employers would relocate workers from nearby facilities to cover for the period of FMLA leave. Given that purpose, the court concluded that the use of surface miles was a better proxy for the feasibility of transferring employees between worksite because the overwhelming majority of workers use surface transportation to get to work. It referenced an example where an employer had worksites on the north and south rims of the Grand Canyon to illustrate that linear miles may not be the best practical measurement to address the ease of relocating an employee from one worksite to another.
The Court found that the DOL's use of surface miles was a reasonable construction of the statute. It noted that surface miles was a plausible reading of the statutory language "within 75 miles." The use of surface miles "furthers the 50/75 provisions purpose in that a surface measurement is a reasonable proxy for judging an employer's ability to relocate an employee from one worksite to another in order for cover for an employee on FMLA leave." Finally, the court noted that this interpretation did not favor employers over employees, and that the Fifth Circuit has also upheld the validity of Section 825.111(b).
The court went on to address, and reject, some clever arguments by Hackworth that eligibility should not be dependent on whether a road zig zags or is straight, or whether a road is under construction and an alternate route must be taken. The court noted that an employee's eligibility could very well depend on such circumstances, but that did not make 825.111(b) arbitrary and capricious. The court opined:
Rather, we see no reason why such considerations should not be factored into the eligibility calculus given the balance the FMLA strikes between the needs of an employee and employer. Because the 50/75 provision was intended to protect employers who do not have a sufficient source of substitute employees nearby to cover for an absent employee, it is only logical that conditions which negatively affect the viability of moving an employee from one worksite to another may well come into play. This s true even if conditions such as the straightness of an interstate or the presence of rad construction may be occasionally determinative of an employee's eligibility status.
Comment: The decision only applies to federal employees covered by Title I (non-civil service employees). Civil Service employees covered by Title II (the OPM FMLA regulations), Congressional, and employees of the Executive Office of the President do not include the 50/75 eligibility requirement.
Note that Title I defines the federal government as one employer for FMLA eligibility purposes. For purposes of 50/75 rules, this appears to mean that any federal employer with employees must count any other federal employee, whether employed by the same federal agency or not, to determine whether their are at least 50 employees within 75 miles of the worksite of the employee requesting leave. This makes little sense as federal employees are not always interchangeable. Remember, the rationale for the 50/75 rule is to permit an employer to transfer an employee from one worksite to another to provide coverage during periods of FMLA leave. The federal government is not designed in a way that to take advantage of this. For example, lets say there are 20 postal employees within 75 miles of a Post Office on the eastern plains of Montana. Lets also say there is large Air Force base nearby. If the Postal employee takes FMLA leave an Air Force employee is not going to come over to replace that employee during the FMLA leave period. The 50/75 rule should not apply to the federal government as a whole because a federal agency losing an employee to FMLA leave cannot draw on other federal agencies for coverage, which is the purpose of the 50/75 rule.