Ambiguity in FMLA eligibility requirement allows First Circuit to find employee eligible for leave despite five-year break in service.
An employee's previous period of employment with an employer must be counted toward eligibility requirements of Family Medical Leave Act (FMLA) despite there being an intervening five-year break in service with the employer, says the First Circuit Court of Appeals in a case of first impression. The First Circuit Court of Appeals decision in Rucker v. Lee Holding Co., d/b/a Lee Auto Malls, No. 06-1633, 12/18/06, highlights the need for employers to take a closer look at initial FMLA eligibility requirements. The case further illustrates another ambiguity in the FMLA at the same time that the United States Department of Labor ("DOL") solicits comments from interested parties on the FMLA and its implementation.
Rucker was employed by Lee Holding ("Lee") for several years before severing ties with Lee for five years. Rucker was not on Lee's payroll and was employed by another employer unrelated to Lee. After five years, Rucker resumed his employment with Lee. He then worked seven and a half months before missing several days of work for back pain or to obtain treatment. Lee terminated his employment and Rucker sued Lee for violating the FMLA.
Lee immediately moved to dismiss Rucker's complaint on the grounds that he was not eligible for FMLA leave because although Rucker met the 1,250 hours worked requirement, he had worked less than 12 months. 29 U.S.C. § 2611 (2)(A) defines eligible employee as someone who has been employed "for at least 12 months by the employer with respect to whom leave is requested" and "for at least 1,250 hours of service with such employer during the previous 12-month period." In response, Rucker relied on 29 C.F.R. § 825.110(b), which provides in relevant part, "The 12 months an employee must have been employed by the employer need not be consecutive months."
The United States District Court of Maine held in favor of Lee, finding that Rucker's prior service did not count toward the 12-month requirement and that the regulation cited by Rucker only provided for brief interruptions in attendance and does not address the situation where the employee severs all ties with the employer for a period of years. The First Circuit reversed, holding the FMLA's statutory language as to the definition of eligible employee is ambiguous. "The words 'has been employed … for at least 12 months by the employer' can be read to refer to only the recent period of employment by the relevant employer or to all periods of employment by the employer." The Court further reasoned that if Congress had intended to impose such an onerous requirement, it would have done so explicitly. In addition, in attempting to explain the ambiguity, the Court also noted that the Senate committee report specifically states that the 12 months "need not have been consecutive," but does not provide any additional explanation.
The First Circuit then deferred to the DOL's interpretation of 29 C.F.R. § 825.110(b) set forth in its amicus brief, finding that the statement, "the 12 months an employee must have been employed by the employer need not be consecutive months" is not limited by the sentences that follow, which address how to count weeks of employment. In addition, the Court held the DOL's preamble to the regulations specifically rejected the idea of excluding service that occurred two or more years prior to the renewed employment and that there is no indication that a five-year break in employment would be any different.
The First Circuit's decision joins with a number of other decisions that may be the subject of comment by individual groups and persons responding to the DOL's recent request for information. On December 1, 2006, the DOL published an official Request for Information on the Family and Medical Leave Act of 1993. In it, the DOL seeks comments from interested groups and individuals on a number of questions for its consideration in the administration and implementation of the FMLA. Comments were due February 2, 2007. As the DOL admits in its Request for Information, legal challenges to the FMLA and its regulations have been wide-ranging, with the most prominent challenge coming from the Supreme Court's decision of Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81 (2002), where the Court struck down the penalty provision contained in 29 C.F.R. § 825.700(a), as exceeding the DOL's statutory authority. The Request for Information specifically asks a question about the eligibility standards of the FMLA as addressed in the Rucker case, stating, "although the eligibility provision has been in effect for over ten (10) years, several issues continue to arise which appear to warrant clarification."