The DOL announced on December 10, 2007, its intention to issue proposed FMLA regulations in January 2008. The primary focus of the proposed regulations is intended to address the Supreme Court's decision in Ragsdale v. Wolverine World Wide Inc. 535 U.S. 81 (2002). There, the Supreme Court found invalid the penalty imposed by 29 CFR 825.700(a) for an employer's failure to timely notify an employee that it designated leave as FMLA qualifying absent evidence of actual prejudice to the employee. The penalty is that the leave taken does not count against the employee's 12 week entitlement. This could result in the employee receiving more than 12 weeks of FMLA leave in a year.
The DOL announced that it "intends to propose revisions to address issues raised by this and other judicial decisions." It is unclear whether the proposed rules will be limited to court decisions that have invalidated existing penalty provisions for an employer's notification failures, or whether it will use the opportunity to address a growing number of court decisions that have challenged the validity of 14 FMLA regulations.
Comment: You can almost hear Michael Buffer announcing: "Let's Get Ready to Rumble!" Employer and employee associations and labor unions should prepare an action plan to address the proposed rule changes. Groups might begin to review court decisions finding invalid the current DOL penalty provisions in 29 CFR 825.110(d), 825.208(c), and 825.700(a). From there, you might want to look at any other cases that have invalidated any other DOL FMLA regulation. A closer look at the recent DOL Information Request Report of the 15,000 public comments might also be in order to prepare for what should be a Battle Royal on proposed regulatory changes as the Presidential campaign really begins to pick up steam.
You can almost see the deal being brokered. President Bush agrees to sign the expansion of the FMLA for military families pending in the Military funding bill in exchange for some employer-friendly regulatory changes in the current DOL regulations.
Happy Holidays!
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