Labor and employment law - First Circuit upholds Department of Labor's broad construction of the FMLA.

• Author: Davis, Benjamin R.
• Position: Family and Medical Leave Act of 1993

Labor and Employment Law--First Circuit Upholds Department of Labor's Broad Construction of the FMLA--Rucker v. Lee Holding Co., 471 F.3d 6 (1st Cir. 2006)

In 1993, Congress passed the Family and Medical Leave Act (FMLA). (1) The law permits eligible employees to take up to twelve weeks leave for specific medical or family reasons. (2) In Rucker v. Lee Holding Co., (3) the United States Court of Appeals for the First Circuit considered whether a former employee, who the employer rehired after a prolonged absence, and who satisfies the hours-worked requirement, may include his previous employment with that employer to satisfy the twelve-month requirement for medical leave under the FMLA. (4) The court deferred to Department of Labor (DOL) regulations, which allowed workers to combine previous employment to meet the twelve-month requirement, and held that Rucker was an "eligible employee" under the FMLA. (5)

Kenneth Rucker worked as a car salesperson for Lee Auto Malls (Lee). (6) He voluntarily ended his employment in 1999 but returned to Lee approximately five years later. (7) After seven months of employment, Rucker ruptured a disc in his back and began to take intermittent medical leave to treat his injury. (8) Lee terminated Rucker on March 7, 2005, less than two months after his initial injury. (9)

Rucker sued Lee in the Federal District Court of Maine, claiming that his termination violated the FMLA. (10) Lee moved to dismiss, claiming that Rucker was ineligible for FMLA protection because he did not satisfy both prongs of the "eligible employee" definition in 29 U.S.C. [section] 2611. (11) Rucker argued that the FMLA and the regulations the DOL promulgated under its authority permitted him to tack on his previous employment to arrive at a combined work term greater than twelve months. (12) The district court rejected his argument and dismissed the case, holding that, despite some ambiguity, Congress could not have intended "such an onerous requirement" that would render former employees eligible for leave immediately after returning from an extended absence. (13)

One of the first legislative accomplishments of the Clinton administration was to sign the FMLA into law. (14) The law guaranteed workers up to twelve weeks of leave per year for enumerated medical and family reasons. (15) It was, for family advocates, the culmination of many years of struggle for greater employee protection during medical or family necessitated absences. (16) The FMLA articulated ambitious goals of gender equality, economic security, and basic fairness in the context of evolving perceptions of family and employment. (17) At the same time, however, Congress partially mitigated the economic effect of the FMLA on businesses by limiting its provisions to employers of over fifty workers and to "eligible employees." (18) In order to meet the two prongs of "eligibility," individuals must be employed for at least twelve months by the employer and for at least 1,250 hours during the previous twelve months. (19)

Congress empowered the DOL to promulgate regulations giving effect to the letter and the spirit of the FMLA. (20) Many supporters of the FMLA predicted that the public would quickly come to perceive the FMLA as a bedrock element of a just workplace, in much the same way that minimum wage and health and safety standards are now universally accepted. (21) In the more than ten years since its passage, that prediction has largely been borne out. (22) Since Congress passed the FMLA more than ten years ago, it has withstood over fifty challenges, mostly from employers, and the courts have generally granted deference to the DOL's interpretation of ambiguities in the statute. (23)

When interpreting statutory language, a court must first ask "whether Congress has directly spoken to the precise question at issue." (24) Where congressional intent is ambiguous, the courts employ a variety of canons of statutory construction to resolve the uncertainty. (25) Where a statute empowers an administrative agency to promulgate regulations to give meaning to the statute, courts generally defer to the judgment of the agency so long as the construction is "a reasonable policy choice for the agency to make." (26)

In Rucker v. Lee Holding Co., the United States Court of Appeals for the First Circuit considered whether a former employee, who an employer rehires after a prolonged absence, and who meets the hours-worked requirement, may include his previous employment to satisfy the twelve-month requirement for medical leave eligibility under the FMLA. (27) The court began by asking "whether Congress has directly spoken to the precise question at issue" and concluded that the language of the FMLA was facially ambiguous. (28) The court then rejected the competing canons of statutory construction that both parties offered. (29)

Additionally, it was unpersuaded by the district court's reasoning that Congress could not have intended such a burdensome requirement for employers. (30) Given the statutory ambiguity, the court concluded that it was required to defer to the administrative agency's reasonable construction. (31) Accordingly, the court held that including previous employment to satisfy the twelve-month requirement for medical leave eligibility was consistent with the FMLA and DOL regulations. (32) The court did not, however, accept the DOL's apparent invitation to determine the "outer limits" of permissible tacking of prior employment and instead instructed the DOL to determine the standard for itself. (33)

The First Circuit Court of Appeals properly deferred to the DOL in construing the FMLA. (34) While both litigants presented reasonable constructions of the statute, the court would have exceeded its role by imposing its own preference in defiance of a reasonable agency interpretation. (35) The court preserved Congress's responsibility to amend the statute where it concludes that the administrative body has misconstrued its intent. (36) This essentially policymaking negotiation is best reserved for the legislative and executive bodies. (37)

Although the court properly exercised restraint by deferring to the DOL's interpretation, the agency's reading of the statute does raise troubling questions about the intended scope of the FMLA. (38) According to the DOL's reading, an employee returning from many years of absence, who works roughly six months, becomes eligible for leave under the FMLA. (39) Although the hours-worked requirement partially mitigates the effect of tacking prior employment, tacking nevertheless substantially increases the burden on employers, particularly those who employ seasonal or peripatetic employees. (40) This construction could also potentially disadvantage employees who left or were terminated because employers may be less inclined to rehire former employees whose previous employment qualifies them for FMLA benefits more quickly than new hires with no prior employment history. (41) Furthermore, the absence of Congressional discussion may evidence a more modest intended scope. (42) When considering the broad public policy objectives of the FMLA in striking a balance between the interests of employees and employers, the expansive DOL construction seems to depart from that balance in favor of employees. (43) While the DOL's construction meets the reasonableness threshold to qualify for Chevron deference, its interpretation may nevertheless be incorrect and unfairly burden employers. (44)

Even with this concern, the court properly declined the DOL's apparent invitation to impose an "outer limit" on an employee's ability to include prior employment towards the twelve-month requirement. (45) Despite the DOL's apparent invitation, enacting such a limitation would disturb the separation of powers by encroaching into the rulemaking prerogatives of the executive branch. (46) The First Circuit exercised admirable restraint while making an explicit appeal to the DOL to provide both employers and employees with much needed guidance. (47)

In Rucker v. Lee Holding Co., the First Circuit Court of Appeals considered whether a former employee, who an employer rehires after a prolonged absence, and who satisfies the hours-worked requirement, may tack on his previous employment to...