The Court Circuit in Rucker v. Lee Holding Co., No. 06-1633, 2006 U.S. App. LEXIS 31072 (st Cir.. Dec.. 18, 2006) recently held that the complete separation of an employee from his or her employment for a period of years does not prevent the employee from counting earlier periods of employment towards satisfying the 12-month FMLA eligibility requirement. The decision reversed the earlier decision of the district court, which found that the employee's previous five years of employment with Lee did not count towards the 12-month requirement because of the intervening five year break in service between the earlier and current periods of employment.
Ken Rucker worked as a car salesman for Lee Auto Malls in Maine for five years. Rucker then left Lee, and five years later rejoined Lee as a full-time employee. Seven months after rejoining Lee, Rucker took medical lave. Approximately two months later, Rucker's employment was terminated. Rucker filed suit claiming that the termination was in violation of the FMLA. The district court granted Lee's motion to dismiss, holding that Rucker could not combine his previous period of employment with his more recent period of employment and thus could not satisfy the FMLA's 12-month employment eligibility requirement.
The Fourth Circuit found that the FMLA itself was ambiguous as to whether previous periods of employment count toward the 12-month eligibility requirement. The Court noted that the statutory language "has been employed ... for at least 12 months by the [relevant] employer" could "be read either to refer to only the most recent period of employment by the relevant employer or to all periods of employment by that employer. Asking how long an employee "has been employed" at a particular company, the Court observed, "is an ambiguous question if he or she has had more than one period of employment." The legislative history, the Court added, failed to demonstrate clear congressional intent on the issue.
The Court went on to address 29 CFR 825.110(b) of the DOL regulations. That regulation states:
The 12 months an employee must have been employed by the employer need not be consecutive months. If an employee is maintained on the payroll for any part of a week, including any periods of paid or unpaid lave (sick, vacation) during which other benefits or compensation are provided by the employer (e.g., workers' compensation, group health plan benefits, etc.), the week counts as a week of employment. For purposes of determining whether intermittent/occasional/casual employment qualifies as "at least 12 months," 52 weeks is deemed to be equal to 12 months.
Rucker focused his argument on a broad reading of the first sentence as meaning that all period of employment count toward the 12-month requirement. Lee instead argued that the first sentence was limited by the second and third sentences, so that non-consecutive months count only when the employee maintains a continuing connection to the employer, as through the continuing provision of benefits. The Court concluded that neither interpretation of the regulation was reasonable.
The Court found that the DOL's regulatory language was ambiguous. When interpreting agency regulations courts give substantial deference to the agency's own interpretation of its regulations, so long as that interpretation is consistent with the regulation and reflects the agency's fair and considered judgment on the matter in question. The Court noted that the DOL expressed the view in the preamble accompanying publication of the final FMLA regulations and in an amicus brief that the first sentence of the regulation, allowing for non-consecutive months, is not limited by the subsequent sentences. The Court found the DOL's interpretation of its regulation reasonable.
Comment: The decision establishes that all prior periods of employment by an employee count towards the employee's meeting the FMLA's 12-months of employment eligibility requirement. Employers should review their record destruction policies to ensure that they retain sufficient employment information so that they can at least determine the begin and end dates of all employees indefinitely. An employer that has destroyed records evidencing prior employment will, at minimum, have a difficult time of establishing that the employee does nor does not meet the 12-month eligibility requirement.
The First Circuit covers Maine, New Hampshire, Massachusetts, Rhode Island, and Puerto Rico.