The FMLA Blog

Federal Court Gets Federal Sector FMLA Coverage Wrong Again

In Chandler v. Bernanke, No. 06-2082(EGS), 2008 U.S. Dist. LEXIS 6224 (D.D.C. Jan. 30, 2008), the court correctly observed that whether a federal employee has a private right of action for violation of the FMLA depends on whether they are covered by Title I, which has a private right of action, or Title II, which does not.  Unfortunately, the court went on to incorrectly find that Title II covers federal employees with more than 12 months of federal service whereas Title I covers federal employees with less than 12 months of service.  The decision confuses FMLA coverage with employee eligibility, and gets the eligibility component wrong to boot.

FMLA Coverage of the Federal Government

There are four variants of the FMLA that apply to different segments of the government of the United States.  Civil service employees wherever employed in the federal government are covered by Title II of the FMLA.  See 5 U.S.C 6381(1)(A); 29 CFR 825.109(a).  Most non-civil service employees of the federal government are covered by Title I of the FMLA, including all Postal employees and civilians in the military.  See 29 CFR 825.109.  Congressional employees are covered by the FMLA provisions of the Congressional Accountability Act (CAA), 2 USC 1302(a)(6).  Employees of the Executive Office of the President (e.g., White House, Council of Economic Advisors, National Security Council OMB) are covered by the FMLA provisions of the Presidential and Executive Office Accountability Act (PEOAA), 3 USC 402, 412. 

The above federal sector FMLA coverages apply regardless of the number of months of service of any particular federal employee.

Eligibility

The federal government at large is covered by the FMLA.  That does not mean, however, that all federal employees are automatically entitled to FMLA leave.  All four federal sector FMLA variants impose additional eligibility requirements before an employee is entitled to exercise FMLA rights.  A federal employee who does not meet the applicable eligibility requirements is not entitled to FMLA leave.

Critically, 12 months or more of federal employment is required to be eligible for FMLA leave under all four federal sector FMLA variants.  See 29 U.S.C. 2611(2)(A)(i)(Title I); 5 U.S.C. 6381(1)(B)(Title II); 2 USC 1312(a)(2)(B)(CAA); 3 USC 412(a)(2)(B)(PEOAA).  Some federal sector variants have additional eligibility requirements a federal employee must meet before they are entitled to FMLA leave.

The court's determination in Chandler that Title I applies to federal employee with less than 12 months of federal service is flat out wrong.   

Comment:  The court was correct that a civil service employee covered by Title II of the FMLA does not enjoy the right to sue his or her federal employer for violations of the FMLA.  In contrast, a Title I covered federal employee may sue his or her employer for violations of the FMLA.  The difference has its roots in the legislative history of the law. 

Title I applies to the private sector as well as non-civil service federal employees.  Congress wanted to give private sector employees the right to sue employers for violating their FMLA rights.  The non-civil service federal employees covered by Title I received the same right.  The legislative history of Title II, in contrast, included some Congressional statements suggesting that existing grievance systems were an adequate means to redress Title II FMLA violations.  As a result, civil service employees covered by Title II do not have the right to sue for FMLA violations.

Federal employees covered by the CAA and PEOAA also enjoy the right to file a lawsuit for FMLA violations.  Unlike Title I, the CAA and the PEOAA require administrative exhaustion before a suit is filed. 

The court probably reached the correct decision in the case.  If, as is likely, Chandler was a civil service employee covered by Title II, she did not have the right to file a lawsuit for violation of the FMLA regardless of the number of months she has been employed with the Federal Reserve. 

It is, however, possible that Chandler was a non-civil service employee.  In that case, Chandler would have met the 12 months of employment eligibility requirement.  The court would also have to determine if she met the two other eligibility requirements under Title I.  If she did, all other things being equal, Chandler could maintain a lawsuit in the event her employer interfered with her right to take FMLA leave.      

The errant decision of the court in Chandler is attributable to its reliance on erroneous precedent in Sullivan-Obst v. Powell, 300 F. Supp. 2d 85, 99 (D.D.C. 2004)(citing Gardner v. United States, 1999 U.S. Dist. LEXIS 2195, 1999 WL 164412 at *7 (D.D.C. Jan. 29, 1999). 

Before it inadvertently denies a federal employee the right to maintain an FMLA suit the District Court for the District of Columbia needs to correct this matter.         

Outside Advisors Not FMLA Employers Subject to Suit

Consultants, attorneys, and insurance company's who advise employer's regarding employee's requests for FMLA leave are not "employers" within the meaning of the FMLA subject to civil suit for money damages.

The ability of an employee to sue an outside company for allegedly giving erroneous FMLA advice was addressed by the court in Jensen v. AT&T and Metropolitan Life Ins. Co., No. 4:06-CV-842 (CEJ), 2007 U.S. Dist. LEXIS 83960 (E.D. Mo. Nov. 13, 2007).  In that case, Jensen was terminated by AT&T, her employer, on the advice of a representative of MetLife following the use of FMLA leave and disability leave.  MetLife recommended termination based on the belief that Jensen's disability rendered her unable to perform her work duties notwithstanding a physician's release allowing her to return to work. 

Jensen sued AT&T and MetLife alleging that her termination was in retaliation for her prior use of FMLA leave.  Jensen argued that MetLife improperly advised AT&T to terminate her employment because she exercised FMLA rights.  MetLife moved to dismiss the FMLA claim arguing that it was not an "employer" within the meaning of the FMLA and, therefore, could not be sued under that law. 

Applying the "economic realities test" of the Fair Labor Standards Act, to establish that MetLife was an FMLA-covered employer an employee must allege that the MetLife had some direct power over her employment.  Citing a number of cases involving health insurers and attorneys, the court concluded that Jensen had failed to allege that MetLife exercised direct power over her employment by advising AT&T to terminate her.

Comment:  Consultants, attorneys, and others who advise an employer regarding FMLA rights lack the requisite direct control over an employee's employment to be considered an FMLA-covered "employer."  The FMLA only permits an aggrieved employee to sue an "employer" for FMLA violations.  Note that organizations that take over complete control of another employer's FMLA administration decisions, such as a PEO, run the considerable risk of being found to be an FMLA-covered employer subject to suit for monetary damages.   

Of course, just because suit is not available under the FMLA against an outside consultant does not mean that an employee has no other recourse.  An employee may be able to sue the outside consultant under a tort or contract theory for their erroneous FMLA advice.  Depending on the terms of the contract, an employer may also be able to seek damages against the consultant for bad FMLA advice.

An upside to using outside FMLA consultants is that it may insulate the employer from double damages for a so-called willful violation.  Courts have found that an employer does not willfully violate the FMLA when they make a reasonable effort to determine their FMLA obligations, including seeking advice from outside professionals.