The FMLA Blog

Bill Expanding FMLA Coverage for Flight Crews Signed into Law

On Monday, December 21, 2009, President Obama signed into law the Airline Flight Crew Technical Corrections Act.  The legislation extends FMLA coverage to approximately 50,000 airline pilots and flight attendants. Because of the way that airlines calculated work hours, flight crews who frequently travel overnight often did not meet the 1250 work-hours eligibility requirement.  As such, they were not eligible to take FMLA leave.  To rectify that problem, the legislation modified the FMLA work hours requirement for flight crew members.  A flight crew member satisfies the work hours requirement if -

1.   the employee has worked or been paid at least 60 percent of the monthly guarantee for the previous 12-month period; and
2.  the employee has worked or been paid for not less than 504 hours during the previous 12-month period.

The legislation also directs the DOL to issue conforming regulations to implement the legislation.

Comment:  For my taste, the legislation was drafted to narrowly.  The legislation should have addressed the practice and not just the industry.  Other industries in the transportation sector calculate work hours the same as airlines where individuals or crews travel overnight.  Do we really need a railroad crew technical corrections act?  A bus drivers technical corrects act? A long haul trucker technical corrections act? etc.  Congress should have fixed the problem for all industries instead of limiting the fix only to the better organized employees.   

Sixth Circuit Clarifies Circumstances Justifying Application of Equitable Estoppel Doctrine to FMLA Eligiblity

Daniel Dobrowski worked as a mechanical engineer for Jay Dee Contractors, Inc.  He took approved FMLA leave for elective surgery related to his epilepsy.  In approving the leave, Jay Dee confirmed in writing that Dobrowski was eligible for FMLA leave.  Dobrowski was not, in fact, eligible for FMLA leave because he worked at a location that did not employ the requisite 50 employees within 75 miles.  Nevertheless, Dobrowski took FMLA leave and had the surgery.  On his return to work from approximately 5 weeks of leave, he was terminated.  At the time Jay Dee told him that the work he had been performing was winding down and they no longer needed his services. Dobrowski sued alleging that his termination violated the FMLA.

Jay Dee moved for summary judgment, arguing that Dobrowski could not state a claim because he was not, in fact, eligible for FMLA leave.  Dobrowski argued that Jay Dee should be equitably estopped from denying FMLA eligibility after having indicated to him at the time of his surgery that he was eligible.  Equitable estoppel is a judicial doctrine that bars the assertion of a claim or a defense.  The trial court granted summary judgment in favor of Jay Dee. Dobrowski appealed the matter to the Sixth Circuit.

The issue presented tot he Sixth Circuit was whether Jay Dee's statements that Dobrowski was being given FMLA leave now bind the employer under the doctrine of equitable estoppel such that Dobrowski should be treated as if the protections of the FMLA apply. 

To answer that question, the Sixth Circuit initially addressed two different burden of proof standards used for determining application of equitableestoppel to FMLA claims.  Under the Supreme Court standard, Heckler v. Community Health Services of Crawford County, Inc., 467 U.S. 51, 59, 104, S. Ct. 2218 (1986), the party claiming estoppel must demonstrate: (1) a definite representation as to a material fact; (2) a reasonable reliance on the misrepresentation; and (3) a resulting detriment to the party reasonably relying on the misrepresentation.

In another case, Mutchler v. Dunlap Mem. Hosp., 485 F.3d 854, 861 (6th Cir.  2007), the Court applied a five-factor test for establishing equitable estoppel: (1) conduct or language amounting to a representation of material fact; (2) awareness of true facts by the party to be estopped; (3) an intention on the part of the party to be estopped that the representation be acted on, or conduct toward the party asserting the estoppel such that the latter has the right to believe that the former's conduct is so intended; (4) unawareness of the true facts by the party asserting theestoppel; and (5) detrimental and justifiable reliance by the party asserting estoppel on the representation. 

The critical difference in the two standards is that that the Supreme Court standards does not require the party asserting the estoppel to show that the other party was aware of the "true facts" or that the other party intended for the statement to be relied upon.  Under this standard, if Jay Dee were simply mistaken about Dobrowski's eligibility equitable estoppel would not apply.  In contrast, under the Supreme Court standard, Dobrowski need not show that his employer either was aware of the true facts or intended for the statement to be relied on.

The Sixth Circuit resolved the conflict in favor of the Supreme Court's equitable estoppel standard.  Applying that standard, the Court found that Dobrowski failed to establish that he change his position in reliance on the belief that his job would be FMLA-protected.   As support, the Court noted the absence of evidence that he made an inquiry as to his rights, asked for written confirmation of his leave arrangement, or changed his behavior after being told he was eligible. 

Without more, the mere fact that Dobrowski satisfied the notice and certification requirements to secure FMLA leave did not establish that he changed his behavior as a result of being erroneously told that he was eligible for FMLA leave.  The Court similarly rejected the argument that, because the surgery was elective, Dobrowski could have rescheduled the leave but did not in reliance on the misrepresentations of Jay Dee.  The Court opined that that, to properly invoke equitableestoppel, it was not sufficient to show what he could have done, but rather what he would have done.  The Court suggested that an affidavit from Dobrowski attesting that he would have forgone surgery but for the misrepresentations as to his FMLA eligibility would have sufficed to defeat summary judgment.  In the absence of such evidence, the Court affirmed the award of summary judgment to Jay Dee.

Comment:    To invoke equitable estoppel to bar an employer from challenging an employee's eligibility where the employer has affirmatively, albeit erroneously, represented that the employee is eligible for FMLA leave, an employee must be able to demonstrate that they would not have taken the leave but for the employer's erroneous designation of the leave asFMLA-protected.  Absent such evidence, mere compliance with the employee's notice and certification requirements fails to establish entitlement to equitable estopppel.    

To avoid expensive litigation on this issue, employers should carefully review their policies and practices to ensure that they accurately reflect all three FMLA eligibility requirements: (1) 12 months of employment; (2) 1250 hours of work in the 12-month period immediately preceding leave commencement; and (3) the employee works at a site where there are at least 50 employees of the employer within 75 miles.  

The Sixth Circuit covers Michigan, Ohio, Kentucky, and Tennessee.     

Absent Formal Challenge, Time Served on Wrongful Suspension Does Not Count Toward 1250-Hour Eligibility Requirement

In Pirant v. U.S. Postal Service, No. 07-1055, 2008 U.S. App. LEXIS 18912 (7th Cir. Sept. 4, 2008), the employee was 12 minutes shy of meeting the 1250-hour eligibility requirement for FMLA leave.  The employee argued that she would have met the 1250-hour requirement but for a two-hour wrongful suspension (she was directed by a supervisor to clock out early one day).  As support, she cited the decision of the Sixth Circuit in Ricco v. Potter, 377 F.3d 599 (6th Cir. 2004).  In that case, the Postal employee who was terminated, then grieved the termination and won reinstatement and a make-whole order from an arbitrator.  The Sixth Circuit held that the hours-of-service calculation for purposes of determining employee FMLA eligibility should include the "hours" the employee likely would have worked but for her unlawful termination.

The Seventh Circuit distinguished Ricco.  In Pirant, notwithstanding notice of her right to grieve the clock-out incident, she did not do so in a timely manner.  Her post-termination grievance of the clock-out incident was dismissed as untimely, a determination which she did not challenge.  The Seventh Circuit found that, by failing to pursue her formal challenge to the suspension, Pirant accepted that she was not entitled to compensation or FMLA credit for the lost 2 hours.  The court found that, standing alone, Pirant's unsubstantiated subjective belief that her two-hour suspension was wrongful was not enough to have those hours credited for purposes FMLA eligibility.  The Seventh Circuit affirmed the dismissal of her FMLA case because Pirant did not meet the 1250-hour eligibility requirement.

Comment:  The decision effectively precludes an employee from contesting the legitimacy of a suspension or termination that adversely effects their FMLA eligibility for the first time as part of their FMLA lawsuit, at least where the employee had other available avenues of redress that were either not used at all, or were not exhausted.  The decision leaves open whether a non-bargaining unit employee without an internal grievance process would be allowed to challenge wrongful suspensions or terminations that adversely affected eligibility for the first time as part of the employee's FMLA lawsuit.  Employers without an internal grievance process might cite Pirant while arguing that the employee could have filed a lawsuit but did not (or did not pursue it to a successful conclusion). 

Employers, of course, may have an internal grievance process outside of a collective bargaining agreement.  In that case, the employee who is shy of meeting the 1250-hour eligibility would also have to use the internal grievance process to challenge that decision.  In that case, Pirant should apply.  

The implication of Pirant is that an employee must both exhaust any internal grievance process regarding an alleged wrongful suspension or termination and must be successful in that forum by having the action reversed. 

The decision has received some notoriety for sustaining the dismissal of an FMLA claim because the employee missed the 1250-hour eligibility requirement by 12 minutes.  I guess folks are always fascinated by cases that fall just short of an arbitrarily drawn standard.            

No Good Deed Goes Unpunished: Employer's Can Be Sued For Violating More Generous FMLA Leave Policies

Employers can, knowingly or unknowingly, adopt family and medical leave (FML) policies that are more generous than the minimum required by the FMLA.  Violation of those more generous policies may subject the employer to civil suit for monetary damages for breach of contract or promissory estoppel based on the employee's detrimental reliance on the employer's policy. Such a claim is not based on the FMLA. Nor will the employer be able to successfully defend these type of actions by arguing that the FMLA does not apply.          

The issue was recently addressed by the Seventh Circuit in in Peters v. Gilead Sciences, Inc.,No. 06-4290, 2008 U.S. App. LEXIS 14894 (7th Cir. July 14, 2008).  In that case, Gilead policy permitted employees to take FML leave if they met two requirements: (1) at least 12 months of employment with the company; and (2) at least 1250 work hours in the 12 month period preceding leave commencement.  Those requirements are the same as the eligibility requirements of the FMLA. What Gilead's policy did not include, however, was the FMLA requirement that Peters be employed at a worksite that employs at least 50 employees within 75 miles- the so-called 50/75 rule.  By not including the 50/75 rule, Gilead's FML policy was more generous than the FMLA. Peters was not entitled to FMLA leave because he did not work at a worksite where there were at least 50 Gilead employees within 75 miles.

Peters applied for and was approved FML leave for a work-related shoulder injury. Gilead provided him with a letter confirming his right to take up to 12 weeks of FMLA leave. The letter repeated the 12 months and 1250 hours eligibility requirements that was also set forth in the employee handbook.  Consistent with the policy, the letter did not address the 50/75 rule.  Like the handbook, the letter also guaranteed his right to reinstatement for such leave if he returned to work by a specified date.  Unfortunately for the employer, it miscalculated the when 12 weeks of FMLA expired.  The miscalculation shorted Peters a month of FML leave.  Gilead replaced Peters before the true expiration of his FML leave.  Peters was medically cleared to return to work before his 12 weeks of FMLA leave expired. 

Peters sued alleging that his termination violated the FMLA.  He also added a state law promissory estoppel claim.  Promissory estoppel is a cause of action independent of the FMLA that permits the enforcement of a promise that otherwise lacks the elements of a contract.  Gilead defended the suit by arguing that Peters was not eligible for FMLA leave because he did not meet the 50/75 requirement.  The trial court agreed.  After equating his promissory estoppel claim with equitable estoppel, the trial court also found that Peters failed to establish that he should be deemed eligible based on the misrepresentations of Gilead. 

On appeal, the Seventh Circuit reversed the decision of the trial court.  The Seventh Circuit found that, even if Peters was not eligible for FMLA leave, he may have an FMLA-like claim for breach of contract or promissory estoppel based on his detrimental reliance on Gilead's handbook policy and the letters he received approving his FMLleave.  The trial court erred when it equated equitable estoppel, a defensive doctrine, with promissory estoppel, a cause of action.  Both are based on detrimental reliance.  The Court remanded the matter back to the trial court to address those claims.

Comment: Employer FML policies frequently provide greater rights than the minimum required by the FMLA.  In addition to dropping the 50/75 eligibility requirement, employers may allow employees to take FML leave for siblings or other family relatives beyond those identified in the FMLA (spouse, daughter, son).  Employer policies may also granted more than the minimum 12 weeks of FMLA leave.  Violation of those more generous policies may/may not create a cause of action for violation of the FMLA.  They may, however, create a contract or promissory estoppel cause of action for violation of the employer's FMLA-like leave policies.  The fact that you did not intend to create more generous FML rights may not relieve you from suit. 

To avoid inadvertently creating greater FML rights (which can be the basis of civil suit) than the minimum required by the FMLA, employers need to exercise great care when drafting and executing their family leave policies. Consistent with the mandates of state law, handbooks and manuals should include prominently displayed disclaimers that the handbook does not create any express or implied contract rights. Employers should also consider having their FML policies independently audited to identify areas where the policy exceeds or fails to meet FMLA requirements. With that information, the employers can make informed decisions on whether it wishes to continue to provide more generous FML policies or not.  Bosland Consulting Group can help you with such audits.     

The Seventh Circuit covers Wisconsin, Illinois, and Indiana.                   

12 Consecutive Months of Employment Not Required for FMLA Eligibility

FMLA leave is available to an employee who has been employed (1) for at least 12 months by the employer with respect to whom leave is requested; (2) for at least 1,250 hours by the employer with respect to whom leave is requested; and (3) the employee must be employed at a work site where there are at least 50 employees of the employer within 75 miles.

In Thomas v. Mercy Mem. Health Center, Inc., No. CIV-07-022-SPS, 2007 U.S. Dist. LEXIS 64184 (E.D. Ok. Aug. 29, 2007), Thomas worked for the Hospital from January 2002 through May 2003, and from April 2004, until she was fired in January 2005.  All told, Thomas worked intermittently for the Hospital for more than 12 months.  Thomas argued that she was fired for being absent for leave that should have been covered by the FMLA. 

The Hospital argued that Thomas was not eligible for FMLA leave because she had not worked for the hospital for 12 consecutive months prior to the date her leave would have commenced.  The Hospital argued that its position was supported by a common sense reading of the statute.  It argued that, because the statute is unambiguous, the DOL regulation (29 CFR 825.110(b)), which provides that the 12-month period need not be consecutive, is invalid.  The Hospital also relied on the opinion of the district court in Rucker v. Lee Holding Co., 419 F. Supp. 2d 1 (D. Ma), rev'd, 471 F.3d 6 (1st Cir. 2006).  In that case, the district court found that an employee could not combine his most recent employment with his previous years of service, which ended five years before, for purposes of the 12-month requirement.

The Court found that the FMLA does not require 12 months of consecutive or continuous employment immediately preceding leave commencement in order to satisfy the 12-month FMLA eligibility requirement.  In so holding, the Court agreed with the decision of the Circuit Court in Rucker v. Lee Holding  Co., 471 F.3d 6 (1st Cir. 2006).  If Congress had wanted the 12-month eligibility requirement to be 12 consecutive or continuous months immediately preceding leave commencement, the Court found that it could have easily done so.  The Court denied the employer's motion to dismiss the employee's FMLA claim.

Comment:  For purposes of the 12-month eligibility requirement, the FMLA does not require employment for 12 consecutive months immediately preceding the commencement of FMLA leave.  The employer in this case attempted to apply the same standard for the 12-month eligibility requirement as is applied for the 1,250-work hours requirement.       

    

Court Rejects Employee Claim He Would Have Met FMLA Eligibility Requirements But For Wrongful Discharge

In Kinchion v. Cessna Aircraft, Co., No. 07-1134-JTM, 2007 U.S. Dist. LEXIS 59683 (D. Kan. Aug. 14, 20007), the employee requested FMLA leave on February 7, 2007, to attend a medical appointment incident to his diagnosis with diabetes.  The employer denied him leave because he had only worked 532 hours in the 12-month period prior to the medical appointment. 

Kinchion had previously suffered a workplace injury to his hand.  In February 2006, it was determined that Kinchion's job duties exceded his medical limitations.  Cessna placed Kinchion on an unpaid leave of absence.  Kinchion collected unemployment.  He was subsequently awarded workers' compensation disability benefits by a U.S. Department of Labor administrative law judge for htis period. 

Kinchion sued alleging violations of the ADA and FMLA.  Kinchion asserted that he was wrongfully discharged in violation of the ADA for filing a workers' compensation claim.  Kinchion also alleged that his wrongful discharge interfered with his FMLA rights by preventing him from accumulating the necessary 1250 required services hours.  Had he not been terminated in violation of the ADA, Kinchion argued, he would have worked the necessary 1250 hours to be eligible for FMLA leave to attend the medical apointment for his diabetes.

The Court initlaly found that the time Kinchion spent on an unpaid leave of absence did not count towards the 1250 hours eligibility requirement.  The Court further found that it "would be speculative for the court to credit Kinchion with the hours of service lost during his leave of absence without pay, even if he was ultimately successful on his wrongful discharge claim."  Because he was not eligible at the time his request for FMLA leave was denied in 2007, the court concluded that Kinchion failed to establish an FMLA intereference claim.

Comment:  Courts have been decidedly unreceptive to employee claims that they would have met the FMLA eligibilty requirements but for some other wrongful conduct, be it a vioaltion of law or the terms of a collective bargaining agreement, by the employer.    

Eligibilty Determined at Leave Commencement, Not During Absence

The FMLA requires an employer to return an employee to their same or an equivalent job at the conclusion of FMLA leave.  To take FMLA leave an employee must meet certain eligibility requirements.  Whether an absence is covered by the FMLA and, therefore, entitles an employee to job restoration, will depend, in part, on whether the employee meets the eligibility requirements for FMLA leave.  Critical to this determination is the point in time when eligibility is assessed.      

In Adly v. Supervalue, Inc., No. 06-CV-5108 (PJS/RLE), 2007 U.S. Dist. LEXIS 57011 (D. Minn. Aug. 3, 2007), Adly went on short term disability leave on January 24, 2006. At the time he had worked for his employer for 10 months.  He would meet the 12-month eligibility requirement on March 28.  Adly did not seek to return to work until April 10.  Supervalue argued that Adly was not eligible for FMLA leave because he did not meet the 12-month eligibility requirement at the commencement of his leave on January 24, 2006, as required by 29 CFR 825.110(d).  As such, Supervalue did not violate the FMLA when it refused to return him to work because his absence was not covered by the FMLA and, therefore, he had no FMLA right to return to work.   

Adly argued that his eligibility should be assessed as of March 28, the date he became eligible while absent from work.  Adly argued that on March 28, the period of leave that commenced on January 24 was transformed by operation of law from non-FMLA leave leave to FMLA leave.  Adly based his argument on 29 CFR 825.110(b), which provides that periods of leave such as sick time and vacation time count towards the 12-month eligibility threshold under the FMLA.  Adly argued that he became eligible for FMLA leave on March 28.  The court agreed that, had Adly returned to work on March 28 and asked for leave on March 29, he would have been eligible.  The court, however, rejected Adly's argument that his absence beginning January 24 was transformed because he reached 12 months of employment during his absence.

The court explained:

Adly's leave, however, was uninterrupted.  It was a single period of leave, taken for a single purpose -- a purpose that in no way changed during the course of the leave.  Under 825.110(d), courts must characterize a period of leave, for FMLA purposes, at the front end. An unbroken leave taken for a single purpose does not change its character in the midst of the leave just because the employee becomes eligible under the FMLA.  Accordingly, the Court finds that Adly never took FMLA leave.  He thus did not have a right of reinstatement under the FMLA. 

Comment:  To be eligible for FMLA leave, an employee must meet 3 requirements: (1) worked for the same employer for at least 12 months; (2) worked at least 1250 hours; and (3) is employed at a worksite where there is at least 50 employees within 75 miles.

The 12-month and 1250 works eligibility requirements as of leave commencement.  Leave commencement is the first absence from work due to the same underlying covered condition each leave year.  Where leave is taken in a single, uninterrupted block of time, eligibility is determined as of the first missed day of work. The fact that the employee meets the eligibility requirements during the unbroken absence does not transform the leave, in whole or in part, from non-FMLA to FMLA leave. 

Similarly, where leave is taken on an intermittent basis (i.e, more than one absence for the same underlying condition during a 12-month leave year), eligibility is determined as of the first absence in the series.

   

FMLA Eligibility Does Not Last Forever

FMLA eligibility does not last forever once attained thereby prohibiting an employer from ever recalculating eligibility. 

In Davis v. Michigan Bell Tel. Co., No. 06-10513, 2007 U.S. Dist. LEXIS 18940 (E.D.Mich. March 19, 2007), the employee first met the FMLA eligibility requirements for depression on September 24, 2004.  She required and was granted additional intermittent absences in October, November, and December 2004.  In January 2005, the employer recalculated Davis' eligibility and denied her FMLA leave because she had not worked 1250 hours in the 12 months preceding her first request for leave after the new year.  The employer used the calendar leave method for calculating the 12-month FMLA leave year.  Her first request for leave after the new year was for depression.

David argued that Michigan Bell violated the FMLA when it recalculated her eligibility in January 2005.  According to Davis, once she became eligible for a serious health condition that requires intermittent leave, her eligibility cannot be redetermined with respect to that condition.  The Court disagreed.

The Court found that, generally, intermittent absences stemming from the same serious medical condition all relate back to the original eligibility and an employer is precluded from recalculating eligibility for each new period of absence.  However, there is a limitation. The Court continued:

An employer may recalculate an employee's FMLA eligibility at the commencement of the first absence in a new 12-month period as designated by the employer. 

As support, the Court cited the decision in Barron v. Runyon, 11 F. Supp. 2d 676, 681 (E.D.Va. 1998) and the Department of Labor (DOL) Opinion Letter FMLA-112, 2000 WL 33157366 (Sept. 11, 2000).  The DOL Opinion Letter provides:

[I]t is our position that the 1,250-hour eligibility test is applied once, on the commencement of a series of intermittent absences, if all involve the same FMLA-qualifying serious health condition during the same 12-month FMLA leave year. The employee in such a case remains entitled to FMLA leave for that FMLA reason throughout the 12-month period, even if the 1,250-hour calculation is not met at some later point in the 12-month period during the series of related intermittent absences.

Comment:  FMLA eligibility is determined as of the first absence in a series of related intermittent absences for the same covered condition, but only for the 12-month period that the employer has elected as the FMLA leave year.  Once that 12-month period expires an employer has the right to determine anew if the employee meets the FMLA eligibility requirements, even if the leave is for the same serious health condition the employee met the previous year.  The upshot of the decision and the DOL Opinion letter is that eligibility does not attach to each serious health condition and last forever once met. 

Court Finds "Deemed Eligible" Penalty Provision Invalid

The court in Massengill v. Anderson County Board of Eduction, No. 3:06-CV-61, 2007 U.S. Dist. LEXIS 16318 (E.D.Tenn. Mar. 7, 2007), joined a long list of other courts finding that the penalty provided in 29 CFR 825.110(d) for an employer's failure to notify an employee within two business days that the employee did not meet the eligibility requirements for FMLA leave was invalid. The penalty imposed by 825.110(d) is that the employee will be "deemed eligible" even if they do not in fact meet the FMLA eligibility requirements.

In Massengill, the employee was discharged after missing work to tend for her sick daughter for ten days.  The employee had not worked the requisite 1250 hours in the 12 month period preceding the commencement of leave.  The employer, however, did not inform Massengill that she was not eligible for FMLA leave.  The employee argued that her employer should be estopped from asserting that she was not eligible for FMLA leave because the employer failed to timely notify the employee that she was not eligible for FMLA coverage, citing 825.110(d).  The Court disagreed.  The Court agreed with a long line of cases that have found that 29 CFR 825.110(d) "seeks to impermissibly extend the scope of FMLA coverage beyond that clearly established by Congress, rendering the regulation invalid." 

The Court also rejected Massengill's alternative argument that her employer should be equitably estopped from denying FMLA coverage for failure to meet the eligibility requirements. The Court found that equitable estoppel may apply where an employer erroneously informs the employee that they qualified for FMLA leave when the employee actually did not qualify.  Here, the employer failed to notify the employee at all whether they were eligible for FMLA leave.  As a consequence, the Court found that the line of cases applying equitable estoppel did not apply because the employee had not been initially misinformed that they qualified for FMLA leave.

Comment: The decision provides a good list of cases that have found the "deemed eligible" penalty provision of 29 CFR 825.110(d) invalid.  It also reminds us that some of the current DOL regulations have been invalidated by many courts.   

   

First Circuit Rules Break In Service Does Not Prevent Counting of Earlier Employment Towards 12-Month Eligiblilty Requirement

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.