Respondents Brief — Ragsdale v. Wolverine World Wide, Inc.

Supreme Court brief2002

Ask Donna

What actually matters in this document.

Text

— “our, US.

FILED

NOV 2 200)

No. 00-6029 } i

irk«

In The Ei i

Supreme Court of the United States

TRACY RAGSDALE, et al.,

Petitioners,

VS.

WOLVERINE WORLD WIDE, INC.,

Respondent.

On Writ Of Certiorari To The

United States Court Of Appeals

For The Eighth Circuit

BRIEF ON THE MERITS FOR RESPONDENT

RicHarp D. BENNETT

Counsel of Record

JAMes Francis BARNA

WEINTRAUB, STOCK, BENNETT &

GrisHaM, P.C.

1715 Aaron Brenner Drive, Suite 512

Memphis, Tennessee 38120

(901) 526-0431

Attorneys for Respondent

COCKLE LAW BRIEF PRINTING CO., (800) 225-6464

OR CALL COLLECT (402) 342-283)

QUESTION PRESENTED

The Family and Medical Leave Act of 1993 (FMLA or

Act) requires covered employers to provide eligible

employees with “a total of 12 workweeks of leave during

any. 12-month period” for specified reasons, 29 U.S.C.

§ 2612(a)(1), including leave needed “[b]Jecause of a

serious health condition that makes the employee unable

to perform the functions of the position of such

employee,” 29 U.S.C. § 2612(a)(1)(D). The FMLA directs

the Secretary of Labor to “prescribe such regulations as

are necessary to carry out” the Act’s substantive provi-

sions. 29 U.S.C. § 2654. The question presented is as

follows:

Whether the Secretary has acted permissibly in pro-

viding by regulation that (with certain exceptions)

employer-provided leave does not count against the Act’s

12-week entitlement until the employer notifies the

employee of its designation as FMLA leave.

CORPORATE DISCLOSURE STATEMENT

Respondent Wolverine World Wide, Inc., has no par-

ent companies, subsidiaries, or affiliates to list pursuant

to Rule 29(6).

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED. ..............0cscseeeeese i

CORPORATE DISCLOSURE STATEMENT .......... ii

nas ceccccesecceccccscecceces iii

TABLE OF AUTHORITIES ...............cceeeeeeee vi

ei ciceeccccececccccccccccccccs: 1

EES SEE EEE OETET TTT ELT LTTE TEES 1

STATEMENT OF THE CASE...............0000005 1

SUMMARY OF ARGUMENT..................504. 3

EEE SELES SEES OCPPET TTT ETT TTY 7

I. THE DEPARTMENT OF LABOR’S

EMPLOYER NOTICE REGULATIONS AT

ISSUE ARE AN IMPERMISSIBLE INTER-

PRETATION OF THE FMLA SINCE THE

PURPOSE AND INTENT OF THE FMLA IS

TO PROVIDE ELIGIBLE EMPLOYEES WITH

A TOTAL OF 12 WEEKS OF LEAVE FOR

COVERED FAMILY AND MEDICAL NEEDS,

AND THE EMPLOYER NOTICE REGULA-

TIONS CONFLICT WITH THAT PURPOSE

TO THE EXTENT THAT THEY WOULD

REQUIRE AN EMPLOYER TO PROVIDE

MORE THAN 12 WEEKS OF LEAVE....... 7

A. THE DEPARTMENT OF LABOR’S

EMPLOYER NOTICE REGULATIONS

CONFLICT WITH THE EXPRESSED

INTENT AND PROTECTIONS OF THE

PURE SE SRG ESS cocehecccccceccécccece 9

II.

TABLE OF CONTENTS - Continued

Page

B. THE DEPARTMENT OF LABOR’S

EMPLOYER NOTICE REGULATIONS

AT ISSUE DISCOURAGE EMPLOYERS

FROM ADOPTING OR RETAINING

LEAVE POLICIES MORE GENEROUS

THAN THOSE REQUIRED BY THE

PUNE n ccxcescecssocaseousedssesouncecs

THE DEPARTMENT OF LABOR’S

EMPLOYER NOTICE REGULATIONS

SHOULD NOT BE GIVEN ANY DEFER-

ENCE SINCE THEY ARE CONTRARY TO

THE CLEAR INTENT OF CONGRESS AND

ARE ARBITRARY, CAPRICIOUS AND

MANIFESTLY CONTRARY TO THE STAT-

A. SINCE THE INTENT OF CONGRESS IS

CLEAR, THE COURT MUST GIVE

EFFECT TO THE UNAMBIGUOUSLY

EXPRESSED INTENT OF CONGRESS,

THAT LEAVE UNDER THE FMLA BE

LIMITED TO A TOTAL OF 12 WEEKS ..

EVEN IF THE COURT FINDS THAT

THE FMLA IS SOMEWHAT AMBIG-

UOUS AND THAT CONGRESS LEFT A

GAP FOR THE REGULATIONS TO FILL,

THEY MUST STILL BE HELD INVALID

AS THEY ARE AN IMPERMISSIBLE

CONSTRUCTION OF THE STATUTE...

THE DEPARTMENT OF LABOR’S

EMPLOYER NOTICE REGULATIONS

ARE NOT SUPPORTED BY THE

NOTICE PROVISIONS CONTAINED IN

FRE CUES cv edetviciccccutesecte cesses

TABLE OF CONTENTS - Continued

Page

Il. THE DEPARTMENT OF LABOR APPEARS TO

IV.

HAVE EXCEEDED ITS RULEMAKING

AUTHORITY IN ITS PROMULGATION OF THE

PROPHYLACTIC EMPLOYER NOTICE REGU-

LATIONS GIVEN THAT CONGRESS ONLY

GRANTED IT GENERAL RULEMAKING

AUTHORITY IN THE FMLA.........-------:

REGARDLESS OF THE VALIDITY OF THE

DEPARTMENT OF LABOR’S EMPLOYER

NOTICE REGULATIONS, WOLVERINE’S

FAILURE TO DESIGNATE PETITIONER'S 30-

WEEK LEAVE AS FMLA LEAVE DID NOT

OTHERWISE INTERFERE WITH OR

RESTRAIN PETITIONER’S EXERCISE OF

HER FMLA RIGHTS.........---- 0005+ +00055

CONCLUSION ....... cece cece cece cere eeeeeeeeees

APPENDIX A- Pertinent Statutes and Regulations. . App. 1

TABLE OF AUTHORITIES

Page

Cases

Carter v. Ford Motor Company, 121 F.3d 1146 (8th

Eee GE naccdacccsdagcabebiscendandetecsonctecss 29

Cass v. United States, 417 U.S. 72 (1974)............. 21

Chevron v. National Resources Defense Council, 467

ee Ge GD dc edsdccesdecnuccesccese 5, 17, 18, 25

Consumer Products Safety Commission v. GTE Syl-

es ey eg . uubedeoewe 17

Christensen v. Harris Co., 529 U.S. 576 (2000) ........ 24

Davis v. Michigan Dept. of Treasury, 489 U.S. 803

SU os vn ancustocdoowncscebesessoendsnéeuecin css 18

Dodgens v. Kent Mfg. Co., 955 F. Supp. 560 (D. S.C.

DE MD WENT povdconecdedlbenhassédncdstscocecces 13

Donnellan v. New York City Transit Authority, No. 98

Civ. 1096 (BSJ), 1999 WL 527901, 5 Wage & Hour

Cas.2d (BNA) 942 (S.D.NLY. Jul. 22, 1999) ........ 12, 39

Ernst & Ernst v. Hochfelder, 425 U.S. 185 (1976)...... 17

Food and Drug Administration v. Brown & Wil-

liamson Tobacco Corp., 529 U.S. 120 (2000)

Ss coceeeneseseeneds ccsékdesbasebectabeecs 17, 18, 24, 26

Fulham v. HSBC Bank USA, 2001 WL 1029051,

7 Wage & Hour Cas.2d (BNA) 474 (S.D.N.Y.

Ue Gp BE 6d Cbs nc dnddcvnbedevdkvcnamsctevcnas 12

Garcia v. United States, 469 U.S. 70 (1984) ........... 17

Gemsco v. Walling, 324 U.S. 244 (1945)............ 35, 37

Haggard v. Farmers Ins. Exch., 1996 WL 146048 (D.

5 EER, Gab PO dctnccsndcccnsbebhlcnt bees cicdu 13

vii

—_—

TABLE OF AUTHORITIES - Continued

Page

Hensley v. Baptist Hosp., 1997 U.S. Dist. LEXIS

22515 (E.D. Tenn. Oct. 27, 1997) ........---eeeeeee 12

INS v. Aguirre-Aguirre, 526 U.S. 415 (1999) .......... 25

Kur v. Fox Valley Press, Inc., 1997 WL 89140 (N.D.

BD, Fe, BR, Bee icc cccccccccccccccccsccvcccccveces 13

Lacoparra v. Permanent Home Centers, 982 F. Supp.

213 (S.D.N.Y. Oct. 10, 1997). ...... 6... cece eee e eens 12

McGregor v. AutoZone, Inc., 180 F.3d 1305 (11th Cir.

RS rrrrrerTy TTreTTTIT TTT TT Ltt Tht. 2

Mourning v. Family Publications Serv., 411 U.S. 356

PPP TTTTTTToT TTT ITT TT TTL 33, 34, 35

N.L.R.B. v. Kentucky River Community Care, Inc.,

121 S. Ct. 1861 (2001) .......... cece creer ee eeeens 26

Ragsdale v. Wolverine Worldwide, Inc., 218 F.3d 933

(Bthe Cie. BOOB). oF... cccccccccccceveees 9, 12, 16, 19

Santos v. Knitgoods Workers’ Union, Local 155, 252

F.3d 175 (2d Cir. 2001). ........-ccecee cece cece eeeee 9

Sarno v. Douglas Elliman-Gibbons & Ives, Inc., 183

F.3d 155 (2d Cir. 1999). .........c ec ceeeeeeeeeeeeee 39

Thorpe v. Housing Authority of City of Durham, 393

UB. BEB CIOS) oi ccccccccccscccccccesccvcccccene 35

TVA v. Hill, 437 U.S. 153 (1978) ..... 6... eee eee ee ees 17

man v. Dilks, 2000 WL 1277917, 6 Wage & Hour

Cas.2d (BNA) 550 (E.D. Pa. Sept. 8, 2000)......... 12

United States v. American Trucking Associations, 310

UG. SBA (1DED) oo. ccc ccc ccc cccccccccccceceescees 21

United States v. Article of Drug . . . Bacto-Unidisk,

FOE US. TOA (IGG)... ccc cccccccccccccccvccccccees 24

viii

TABLE OF AUTHORITIES - Continued

Page

United States v. Dickerson, 310 U.S. 554 (1940) ....... 21

United States v. Haggar Apparel Co., 526 U.S. 380

PID OP cece cteskdaccovccstnceenechdusebderesnend ves 17

United States v. Mead Corp., 121 S. Ct. 2164 (2001) .... 25

United States v. O'Hagan, 521 U.S. 642 (1997)

PCUSRDEN eS deere SeceEDessHecdened 6ésbece’ 33, 34, 36, 37

Whitman v. American Trucking Associations, Inc., 531

U.S. 457, 121 S. Ct. 903 (2001)......... 21, 26, 27, 28

STATUTES

St Ee UF MS vendcccescesudevéicecéecsecccckSects 36

Ser eee MP CU Vein vows dnecdudneteneesenceceenses 33, 36

I i a eae Fi 33, 36, 37

ee A EE Son ncccccncescconuvecesbacetoinnacda 34

Be lw BO es oc vcccnapccasdcepeseuntectsces passim

Sie Wy a a cc cbneidedccscccedndhbuadbdebeudec 9

DP Mee Ee MEE Che bcadbccoccdgcesndeseisinudesvanst 19

BP Ws CRM ren vid sec caceuscdembedsddeweans passim

Gy ne WN Shs ee 64 cn nvdnensace cp vesaccuversouane 29

BP Wes Mca venrcensactoks bidsccebitscsdons 14, 30

BP DEG Beh oe bcc vabiicvwsssat coccesvacveas 10, 30

BP es We Se 4 oh cccksbdsees dese s vide tubeedeceves 14

Ge SEY PII 96-0 oe bn bndc ce pi dseenddee ckbic cucde 13

SP MPa ST 6-6 0.4000 cbahestpeadddiaeces. 11, 27, 33

TABLE OF AUTHORITIES - Continued

Page

42 U.S.C. § WOOe!..... cc eciccccvccccvvccccccecveess 33

GB UGC. 6 POBB. nc ccccccccccccccccccvcescccvevevees 26

REGULATIONS

29 C.RR. © GOS.2O7 2... ccsccccccccvcccccvevevvveees 10

29 C.RR. © GASES ow. .rcccccccccvccees 3, 10, 11, 23, 40

29 C.RR. © GOS.SGL ... crc ccccsccccccccccvvevccsees 13

29 C.F.R. § 825.700(a).........--- eee es 3, 10, 11, 23, 40

OTHER AUTHORITIES

S. Rep. No. 103-3, at 28 (1993), reprinted in

es ccc eke eeees seeseesesoeees 21

103rd Cong. H381 (February 3, 1993) (statements

of Representative Clay on the Family and Medi-

OE BD Ge cccccccescccceovccensccccoscooosece 21

103rd Cong. H387 (February 3, 1993) (statements

of Representative Snowe on the Family and

Diatiaes Tae AGM, oo ccccsccccccccccccccccesesss 21

H.R. Rep. No. 135(1), at 37 (1991)........-eeee eens 22

Legislative Hearing on H.R. 1, The Family and

Medical Leave Act, Hearing of the Labor-Man-

agement Relations Subcommittee of the House

Education and Labor Committee, 103rd Cong.,

lst Sess., Fed. News Service, January 26, 1993,

i) ee eee eee eee eee eee eee eee 8

S. “vt No. 103-3, at 4 (1993), reprinted in 1993

i i TT . 6 cen eens bee ee tesccocescnosses 10

TABLE OF AUTHORITIES - Continued

Page

Statements of Labor Secretary Robert Reich, Legis-

lative Hearing on H.R. 1, The Family and Medi-

cal Leave Act, Hearing of the Labor--

Management Relations Subcommittee of the

House Education and Labor Committee, 103rd

Cong., Ist Sess., Fed. News Service, 2

1993, p. 37 eoosagobens

Statements of Sen. Kennedy, The Family and Med-

ical Leave Act of 1993, Committee on Labor and

Human Resources, S. Rep. 103-3, 103rd Cong.,

Ist Sess., p. 5 (Jan. 27, 1993)

STATEMENT OF THE CASE

A. This case arose out of a dispute between an

employee and her employer over the employee's leave

rights under the Family and Medical Leave Act (the

“FMLA”), 29 U.S.C. § 2601, et seq. The employee, Tracy

Ragsdale (“Petitioner” or “Ragsdale”), claims that her

employer Wolverine World Wide, Inc. (“Respondent” or

“Wolverine”), violated the FMLA when it refused to grant

Ragsdale additional medical leave under the FMLA after

she had exhausted her company provided 30 weeks

(seven months) of medical leave.

Petitioner Tracy Ragsdale began her employment

with Wolverine on March 17, 1995. On February 21, 1996,

before she had completed twelve months of service with

Wolverine, Ragsdale requested leave after her diagnosis

of cancer. Wolverine granted her request, and Ragsdale’s

leave commenced on that date. Wolverine’s leave policy

allowed employees with six months of service to take

unpaid leave for up to seven months (30 weeks). The

leave policy required employees on leave to submit

requests for extensions of leave every thirty days. Consis-

tent with that requirement, Ragsdale requested an exten-

sion of her leave on March 18, April 22, May 21, June 20,

July 22, and August 15 of 1996. Each request for extension

was granted by Wolverine. During the time she was on

leave, Wolverine maintained Ragsdale’s health insurance

benefits, and even exceeded the requirements of the

FMLA by paying Ragsdale’s portion of her insurance

premiums for six months. Wolverine also held Ragsdale’s

position open for her during the entire 30 weeks of

unpaid leave. (Joint App. 83-84).

Ragsdale was terminated on September 20, 1996,

because she had exhausted her 30 weeks of company

provided leave in full and was unable to return to work.

Wolverine never advised Ragsdale that it was designating

any of the 30 weeks leave as FMLA leave.! On September

26, 1996, Ragsdale returned to Wolverine and requested

an additional twelve (12) weeks of FMLA leave. She was

informed that she had requested and used all of her

available leave and, therefore, Wolverine declined her

request. Ragsdale’s physician released her to work in

December 1996 and she was able to resume full work

duties for another employer on December 31, 1996. (Joint

App. 83-84).

B. Upon cross motions for summary judgment, the

United States District Court for the Eastern District of

Arkansas granted Wolverine’s motion for summary judg-

ment and dismissed Petitioner’s claim that she was enti-

tled, pursuant to the FMLA, to an additional 12 weeks of

leave specifically designated as FMLA leave after having

exhausted her 30 weeks of company provided medical

leave. Subsequent to the Petitioner’s motion to alter or

amend, the District Court issued a second Order wherein

it adopted the Eleventh Circuit's holding in McGregor v.

AutoZone, Inc., 180 F.3d 1305 (11th Cir. 1999) (affirming

the district court’s decision in Cox v. AutoZone, Inc.),

which found that the DOL’s employer notice regulations,

' Wolverine never designated any of the leave as FMLA

leave because it determined, erroneously, according to the

District Court, that she was not an eligible employee since at the

time she commenced her leave Ragsdale had not been employed

by Defendant for twelve (12) months.

requiring employers to notify an employee that an

absence is being counted as FMLA leave before the

employer can count the leave against the employee's

twelve-week entitlement under the FMLA, invalid

because it converts the FMLA’s minimum of federally

mandated unpaid leave into an additional 12 weeks of

leave unless the employer specifically and prospectively

notifies the employee that she is using FMLA leave.

The Eighth Circuit Court of Appeals affirmed the

District Court’s decision holding the DOL regulation at

29 C.F.R. § 825.700(a)? invalid insofar as it purports to

require an employer to provide more than twelve weeks

of leave. The Court of Appeals found that such a regula-

tion is not a permissible interpretation of the FMLA and

is not consistent with the purpose and intent of the

FMLA.

SUMMARY OF ARGUMENT

I. Petitioner Tracy Ragsdale took 30 weeks of

unpaid leave under Wolverine’s sick leave policy. During

Petitioner's 30-week leave, Wolverine maintained her

2 Wolverine had requested that the Eighth Circuit find the

DOL’s employer notice regulations at 29 C.F.R. §§ 825.208(c) and

825.700(a) invalid since both employer notice regulations are

basically the same, except that 29 C.F.R. § 825.208(c) covers paid

~ leave and 29 C.F.R. § 825.700(a) covers paid and unpaid leave.

The Court only ruled that 29 C.F.R. § 825.700(a) was invalid

without comment on whether 29 C.F.R. § 825.208(c) was invalid,

presumably because the employer provided leave at issue here

is unpaid.

health insurance benefits and paid her insurance pre-

miums for 26 weeks. Finally, Wolverine kept Petitioner’s

job open for her for the duration of the 30-week leave

period. On September 20, 1996 after the expiration of the

30 weeks, Petitioner was terminated pursuant to Wolver-

ine’s sick leave policy, since she was unable to return to

work due to her medical condition. Now, after having

permitted herself to receive 30 weeks of company pro-

vided medical leave, Petitioner contends that she is enti-

tled to an additional 12 weeks of leave, because

Wolverine failed to formally and specifically designate

her 30-week leave as FMLA leave. To impose such a

result on Wolverine would distort the FMLA beyond

anything envisioned by Congress.

A. The primary purpose behind the FMLA is to

provide eligible employees with a total of 12 workweeks

leave for covered family and medical needs. The FMLA

reflects a balancing between employees’ need to take

reasonable leave for medical reasons and the legitimate

interests of employers. The total of 12 workweeks leave

also represents a carefully crafted compromise by Con-

gress as to the total amount of leave available to

employees. To the extent the regulations at issue require

an employer to provide more than 12 workweeks of leave

within a 12 month period, such regulations conflict with

the expressed intent and purpose of the FMLA.

B. Contrary to the expressed provisions of the

FMLA, the DOL’s employer notice regulations discourage

employers from adopting or retaining leave policies more

generous than the requirements of the Act. Employers are

discouraged from adopting or retaining leave policies

more generous than the Act out of concern that they will

be required to provide an additional 12 workweeks of

leave, over and above the employer’s leave policy, unless

the employer specifically and prospectively designates

the leave as “FMLA leave.” The plain text of the statute

and the legislative debate both plainly reveal that the

FMLA leave provisions were not intended to burden

employers providing leave more generous than that con-

tained in the FMLA.

II. The DOL’s employer notice regulations are not

entitled to deference since they are contrary to the unam-

biguously expressed intent of Congress that leave under

the FMLA be limited to a total of 12 workweeks. Any

view of the FMLA, other than that the twelve weeks of

leave is both the minimum the employer must provide

and the maximum that the statute requires, will upset the

carefully crafted compromise reached by Congress when

it passed the FMLA. Therefore, the regulations are invalid

under step one of the Chevron test. Moreover, the regula-

tions are invalid under step two of the Chevron test, since

they are an impermissible construction of the Statute and

are “arbitrary, capricious, and manifestly contrary to the

statute.” To the extent that the DOL employer notice

regulations seek to fill a perceived gap in the Statute they

are broader than necessary to achieve their purpose, and

are punitive to those employers who have provided at

least 12 workweeks of leave.

A. Where the intent of Congress is unambiguous,

the Agency interpretation of the statute is not entitled to

deference. Here the intent of Congress is unambiguous;

eligible employees are entitled to federally protected

leave for a total of 12 workweeks. The DOL’s employer

notice regulations that require more than 12 workweeks

of leave are invalid and not entitled to deference.

B. Even if the statute is somewhat ambiguous and

left a gap for the DOL regulations to fill, the DOL’s

employer notice regulations are an impermissible con-

struction of the statute as they are arbitrary, capricious

and manifestly contrary to the statute. Following the

DOL’s employer notice regulations would render nuga-

tory the statute’s limitation to a total of 12 workweeks of

leave.

C. Where Congress wanted explicit notice provi-

sions, it provided for them in the statute. The DOL’s

employer notice regulations are not supported by the

notice regulations of the statute and change the balance

Congress explicitly struck between employers and

employees. Further, where Congress felt a penalty was

warranted for non-compliance, it provided for a mone-

tary penalty. The DOL’s penalty for non-compliance with

its employer notice regulations is grossly excessive and

directly contrary to the Statute’s primary purpose to limit

leave to a total of 12 workweeks.

III. The DOL appears to have exceeded the general

rulemaking authority granted it by the statute in its pro-

mulgation of the prophylactic employer notice regula-

tions.

IV. Even assuming the DOL’s employer notice regu-

lations are valid, Wolverine’s failure to designate any of

the Petitioner’s 30-week company provided leave speci-

fically as FMLA leave, did not otherwise interfere with or

restrain her exercise of her FMLA rights since she

received all the benefits provided for in the FMLA and

since she was unable to return to her position at the

conclusion of her leave period, and in fact was not able to

return to full duty until more than 10 months after she

commenced her leave.

ARGUMENT

I. THE DEPARTMENT OF LABOR’S EMPLOYER

NOTICE REGULATIONS AT ISSUE ARE AN

IMPERMISSIBLE INTERPRETATION OF THE

"MLA SINCE THE PURPOSE AND INTENT OF

THE FMLA IS TO PROVIDE ELIGIBLE

EMPLOYEES WITH A TOTAL OF 12 WEEKS OF

LEAVE FOR COVERED FAMILY AND MEDICAL

NEEDS, AND THE EMPLOYER NOTICE REGULA-

TIONS CONFLICT WITH THAT PURPOSE TO THE

EXTENT THAT THEY WOULD REQUIRE AN

EMPLOYER TO PROVIDE MORE THAN 12 WEEKS

OF LEAVE.

Through the FMLA Congress sought to establish a

uniform federal leave policy. The primary guarantee and

cornerstone of the FMLA is that all eligible employees

should be provided a total of 12 weeks of federally pro-

tected leave for covered family and medical reasons. It is

the provision of the 12 weeks of leave with which Con-

gress was most concerned. The 12 weeks of leave was a

carefully crafted compromise. Congress deliberately

selected 12 weeks because it could not get a majority of

its members to support a lesser leave period nor a longer

leave period. As explained by Representative Ford:

. . why 12 weeks and not a longer or shorter

time? We started out in the other committee that

I chaired, the Post Office and Civil Service Com-

mittee, with Mr. Clay and Ms. Schroeder and I

was pushing a bill that was 26 weeks. . . . But

over the years of dealing with this bill, one of

the things that people used to attack the bill

most often was how do you justify 26 weeks to

have a baby? How do you justify 26 weeks to

adopt a baby? How do you justify 26 weeks, and

we went from one kind of medical emergency to

another, and it became a central part of the

opposition to the concept of the legislation. And

over the years that number was compromised

down, and not because 12 weeks made any more

sense to the original sponsors of this legislation

than 26 — because we could get more people to

vote for 12 weeks than we could for 26, and

including members of this committee who

didn’t support the bill at the very beginning but

began to support the bill after we modified the

number of weeks involved.

(Legislative Hearing on H.R. 1, The Family and Medical

Leave Act, Hearing of the Labor-Management Relations

Subcommittee of the House Education and Labor Com-

mittee, 103rd Cong., 1st Sess., Fed. News Service, January

26, 1993, p. 27).

Because the Department of Labor's (“DOL”)

employer notice regulations at issue always require un-

wary employers to provide more than 12 weeks of leave

unless the employer specifically notifies the employee

prospectively that she is using FMLA leave, the DOL has

accomplished through regulation what the congressional

sponsors of the FMLA could not - leave in excess of 12

weeks. This is blatantly inconsistent with the purpose

and intent of the FMLA.

i in

A. THE DEPARTMENT OF LABOR’S EMPLOYER

NOTICE REGULATIONS CONFLICT WITH

THE EXPRESSED INTENT AND PROTEC-

TIONS OF THE ACT.

The terms of the statute contemplate only that the

employer will be required to provide a “total” of 12

weeks of unpaid leave. Entirely absent from the text of

the FMLA is any indication that the FMLA was designed

to entitle an employee to additional leave under the

FMLA when the employer's leave plan already provides

for twelve weeks of FMLA leave. Ragsdale v. Wolverine

Worldwide, Inc., 218 F.3d 933, 938 (8th Cir. 2000). See 29

U.S.C. § 2612(a)(1) (“employee shall be entitled to a total

of 12 workweeks of leave during any 12-month period”);

29 U.S.C. § 2612(d)(1) (“If an employer provides paid

leave for fewer than 12 workweeks, the additional weeks

of leave necessary to attain the 12 workweeks of leave

... may be provided without compensation”). Moreover,

the statute does not suggest that the 12-week entitlement

may be extended. See Santos v. Knitgoods Workers’ Union,

Local 155, 252 F.3d 175, 178 (2nd Cir. 2001) (noting that 29

U.S.C. § 2612(d)(2)(B) “does not create or supplement

employer benefits”).

In enacting the FMLA, Congress sought to accommo-

date the important societal interest in assisting families,

by establishing a minimum standard for leave. In the

FMLA Congress declared that the statute is designed to

“entitle employees to take reasonable leave for medical

reasons” and to “accomplish [this purpose] in a manner

that accommodates the legitimate interests of employers.”

29 U.S.C. §§ 2610(b)(2) & (3). The legislation is based on

the same principle as the child labor laws, the minimum

wage, Social Security, the safety and health laws, the

pension and welfare benefit laws, and other labor laws

that establish minimum standards for employment. See S.

Rep. No. 103-3, at 4 (1993), reprinted in 1993 U.S.C.C.A.N.

3, 6.

Although the Act already contained explicit

employer notice provisions, 29 U.S.C. § 2619, containing

monetary penalties for an employer's failure to post the

required notices, the DOL apparently felt that additional

employer notice provisions were necessary.? See 29 C.F.R.

§§ 825.208 and 825.700(a). The DOL promulgated these

employer notice regulations ostensibly to require the

employer to communicate with the employee regarding

FMLA leave. (DOL Brief at 4). Where the employer pro-

vides for paid medical or vacation leave in circumstances

that would also qualify for FMLA leave, DOL regulations

allow for the employee to elect, or for the employer to

require, any of the following: (1) that the FMLA leave be

taken before the non-FMLA leave is taken; (2) that the

non-FMLA leave be taken before the FMLA leave is

taken; or (3) that the non-FMLA leave and the FMLA

leave be taken concurrently. See 29 C.F.R. § 825.207. The

DOL regulations place the burden on the employer to

determine whether requested leave qualifies as FMLA

leave and to designate leave as FMLA-qualifying. See 29

C.F.R. § 825.208. Notably, “in all circumstances, it is the

employer's responsibility to designate leave, paid or

* The DOL's final regulations took effect on February 5,

ap sixteen days before Petitioner began her leave on February

1, 1996.

unpaid, as FMLA-qualifying, based on information pro-

vided by the employee,” 29 C.F.R. § 825.208(a)(2), and

“the employer must immediately notify the employee

that the paid leave is designated, and will be counted as

FMLA leave.” 29 C.F.R. § 825.208(b). If the employer fails

to designate the leave as FMLA leave, the employer may

not designate leave as FMLA leave retroactively, and may

only designate leave prospectively as of the day of noti-

fication to the employee of the designation. In such cir-

cumstances, the employee is subject to the full protection

of the Act, but none of the absence preceding the notice

to the employee of the designation may be counted

against the employee’s 12-week leave entitlement. 29

C.F.R. § 825.208(c). The DOL also applies the same princi-

ple to unpaid employer-provided leave, stating: “[i]f an

employee takes paid or unpaid leave and the employer

does not designate the leave as FMLA leave, the leave

taken does not count against an employee’s FMLA enti-

tlement.” 29 C.F.R. § 825.700(a).*

Even if the DOL enacted the employer notice regula-

tions pursuant to its statutorily given authority to “pre-

scribe such regulations as are necessary to carry out” the

provisions of the Act, 29 U.S.C. § 2654, these regulations

go beyond what is necessary to accomplish this purpose.

In spite of the statute’s explicit expression that eligible

employees are only entitled to a total of 12 weeks of

4 Although 29 C.F.R. § 825.208(c) deals with paid leave and

29 C.F.R. § 825.700(a) deals with paid and unpaid leave, the two

regulations are inextricably intertwined for purposes of

interpretation of the FMLA.

federally protected leave, following the above DOL-pro-

mulgated regulations will in all cases result in an

employee receiving greater than 12 weeks leave, unless

the employer specifically notifies the employee prospec-

tively that she is using her FMLA leave. Where the

employer has provided an employee all the rights con-

ferred on the employee by the FMLA, it should not be

found in violation of the FMLA. As the Eighth Circuit

properly held, “to find that Wolverine’s technical viola-

tion of the designation regulations functions as a denial

of Plaintiff’s FMLA rights would be an egregious eleva-

tion of form over substance; a result clearly not contem-

plated by the FMLA.” Ragsdale, 218 F.3d at 940. See

Fulham v. HSBC Bank USA, 2001 WL 1029051 at *4-7, 7

Wage & Hour Cas.2d (BNA) 474 (S.D.N.Y. Sept. 6, 2001);

Twyman v. Dilks, 2000 WL 1277917, at *11-14, 6 Wage &

Hour Cas.2d (BNA) 550 (E.D. Pa. Sept. 8, 2000) (the

statute’s clearly expressed intent is to provide employees

with a minimum and a maximum of twelve weeks of

statutorily required leave, without interfering with an

employer’s decision to give more); Donnellan v. New York

City Transit Auth., No. 98 Civ. 1096 (BSJ), 1999 WL 527901

(S.D.N.Y. July 22, 1999) (plaintiff received seventeen

weeks of leave, which her employer never designated as

FMLA-qualified; the court stated that the “plaintiff was

denied nothing more than the labeling of her leave as

FMLA-qualified”); Hensley v. Baptist Hosp., 1997 U.S. Dist.

LEXIS 22515 (E.D. Tenn. Oct. 27, 1997) (defendant not in

violation of FMLA even though it failed to classify leave

as FMLA-qualifying where the employee was provided

all the leave, benefits and other protections contained in

the FMLA); Lacoparra v. Permanent Home Centers, 982

F. Supp. 213, 221 (S.D.N.Y. Oct. 10, 1997) (employer’s

failure to notify plaintiff of the requirements of its FMLA

policy did not matter where plaintiff received six months

of unpaid leave, continuing insurance benefits and rein-

statement); Dodgens v. Kent Mfg. Co., 955 F. Supp. 560, 565

(D. S.C. Feb. 20, 1997) (employer’s failure to provide

notice required by 29 C.F.R. § 825.301 was not a violation

of the FMLA where the employee was not deprived of

any leave or benefits required by the statute; to do other-

wise “would be elevating form over substance”); Kur v.

Fox Valley Press, Inc., 1997 WL 89140 at *3-4 (N.D. Ill. Feb.

20, 1997) (dismissing employee's claim that she was enti-

tled to more than 12 weeks of leave without addressing

whether the employer had designated the 12 weeks taken

as FMLA leave); Haggard v. Farmers Ins. Exch., 1996 WL

146048 (D. Or. Mar. 25, 1996) (employer’s failure to pro-

vide notice that employee was using FMLA leave not a

violation where employee received 14 weeks of leave).

B. THE DEPARTMENT OF LABOR’S EMPLOYER

NOTICE REGULATIONS AT ISSUE DISCOUR-

AGE EMPLOYERS FROM ADOPTING OR

RETAINING LEAVE POLICIES MORE GEN-

EROUS THAN THOSE REQUIRED BY THE

FMLA.

Significantly, and as noted by the Eighth Circuit, the

FMLA states that “nothing in this Act or any amendment

made by this Act shall be construed to discourage

employers from adopting or retaining leave policies more

generous than any policies that comply with the require-

ments under this Act.” 29 U.S.C. § 2653(b). Although the

FMLA sets only a minimum entitlement to a period of up

to 12 weeks of unpaid leave, see 29 U.S.C. § 2612(c), the

Act does not “diminish the obligation of an employer to

comply with any collective bargaining agreement or any

employment benefit program or plan that provides

greater family or medical leave rights to employees than

the rights established under this Act... .” 29 U.S.C.

§ 2652(a). In addition, the Act establishes that the mini-

mum entitlement may not be reduced or bartered away

for other benefits. See 29 U.S.C. § 2652(b). Following such

leave, the employee is entitled to reinstatement to his or

her former position or an equivalent one. 29 U.S.C.

§ 2614(a). During his or her FMLA leave, the employee is

also entitled to remain eligible for certain employee bene-

fits, including enrollment in the employer’s group health

plan(s). 29 U.S.C. §§ 2612, 2614.

Just as employers are free to pay their employees

more than the minimum wage, employers under the

FMLA are free to adopt or retain leave provisions over

and above the requirements of the FMLA. After enact-

ment of the FMLA, Wolverine chose to retain its more

generous leave provisions. Just like the employer who

was already paying its employees the statutorily required

minimum wage, the new labor standard (FMLA) did not

require Wolverine to provide any additional leave bene-

fits since it already exceeded those mandated by the Act.

Indeed, the FMLA was not designed for employers,

like Wolverine, who have leave policies more generous

than the FMLA. It was designed for those employers

(those “unenlightened” companies as they were referred

to by Secretary Reich) who did not see the need in allow-

ing their employees time off for the birth or adoption of a

child or for serious health conditions. See Statements of

Labor Secretary Robert Reich, Legislative Hearing on

H.R. 1, The Family and Medical Leave Act, Hearing of the

Labor-Management Relations Subcommittee of the House

Education and Labor Committee, 103rd Cong., 1st Sess.,

Fed. News Service, January 25, 1993, p. 37 (“I did not

mean to imply . . . that this legislation will in any way

burden enlightened companies. Quite the contrary.

Enlightened companies are already doing it [providing

family and medical leave]. They will not be burdened at

all by something they’re already doing. This legislation

will simply help them in the sense that they may be

burdened right now by the fact that other companies

which are less responsible create a climate of distrust

among employees generally, which those enlightened

companies have a slightly harder time overcoming.”). See

also Statements of Sen. Kennedy, The Family and Medical

Leave Act of 1993, Committee on Labor and Human

Resources, S. Rep. 103-3, 103rd Cong., Ist Sess., p. 5 (Jan.

27, 1993) (“It is a minority of employers who act irrespon-

sibly. Even without minimum standards most employers

would pay a living wage, take steps to protect the health

and safety of their work force, and offer their employees

decent benefits. A central reason that labor standards are

necessary is to relieve the competitive pressure placed on

responsible employers by employers who act irresponsi-

bly. Federal labor standards take broad societal concerns

out of the competitive process so that conscientious

employers are not forced to compete with unscru »«lous

employers.”).

Thus, if an employer only provided its employ:»s

with four weeks of leave, the FMLA would provide an

additional eight. See 29 U.S.C. § 2612(d)(1). However, if

an employer provides leave equal to or more generous

than that in the FMLA, the enactment of the FMLA

bestowed no additional benefits on that employer’s

employees. Such is the case here. The enactment of the

FML.\ bestowed no benefit whatsoever on the employees

of Wolverine, since its leave policy was already more

generous than the statute.

Contrary to the expressed provisions of the FMLA,

the DOL’s employer notice regulations discourage

employers from adopting or retaining leave policies more

generous than the requirements of the Act. Employers are

discouraged from adopting or retaining leave policies

more generous than the Act out of concern that they will

be required to provide an additional 12 workweeks of

leave, over and above the employer's leave policy, unless

the employer specifically and prospectively designates

the leave as “FMLA leave.” To allow the Petitioner an

additional 12 weeks of leave would, in effect, convert the

FMLA from a statute which provides a baseline of 12

weeks federally mandated leave, into a statute which

mandates an additional 12 weeks of leave for all

employees, even for those employees who already have

published, collectively-bargained, well-known employer-

provided leave policies that grant benefits equal to or

more generous than those in the Act. As the Eighth

Circuit held, such an interpretation of the Act is glaringly

inconsistent with both the text and legislative intent of

the statute. Ragsdale, 218 F.3d at 940-41.

Il. THE DEPARTMENT OF LABOR’S EMPLOYER

NOTICE REGULATIONS SHOULD NOT BE

GIVEN ANY DEFERENCE SINCE THEY ARE

CONTRARY TO THE CLEAR INTENT OF CON-

GRESS AND ARE ARBITRARY, CAPRICIOUS

AND MANIFESTLY CONTRARY TO THE STAT-

UTE.

A. Since The Intent Of Congress Is Clear, The

Court Must Give Effect To The Unambiguously

Expressed Intent Of Congress, That Leave

Under The FMLA Be Limited To A Total Of 12

Weeks.

Although agencies are generally entitled to deference

in the interpretation of statutes that they administer, a

reviewing court, as well as the agency, must give effect to

the unambiguously expressed intent of Congress. Chevron

v. National Resources Defense Council, 467 U.S. 837, 842

(1984); Food and Drug Administration v. Brown & Wil-

liamson Tobacco Corp., 529 U.S. 120, 125-126 (2000). “The

starting point in every case involving the construction of

a statute is the language itself.” Ernst & Ernst v.

Hochfelder, 425 U.S. 185, 197 (1976); TVA v. Hill, 437 U.S.

153, 173 (1978); Consumer Products Safety Commission v.

GTE Sylvania, 447 U.S. 102, 108 (1980). In Garcia v. United

States, 469 U.S. 70, 75 (1984), then, Justice Rehnquist

stated for the court, “when we find the terms of a statute

unambiguous, judicial inquiry is complete, except in

exceptional circumstances.”

Under Chevron, a reviewing court must first ask

“whether Congress has directly spoken to the precise

question at issue.” Chevron, 467 U.S. at 842. See also United

States v. Haggar Apparel Co., 526 U.S. 380, 392 (1999). “If

Congress has done so, the inquiry is at an end; the court

‘must give effect to the unambiguously expressed intent

of Congress.’ ” Food and Drug Administration, 529 U.S. at

132.

In determining whether Congress has specifically

addressed the question at issue, a reviewing court should

not confine itself to examining a particular statutory pro-

vision in isolation. “The meaning - or ambiguity - of

certain words or phrases may only become evident when

placed in context.” Id. “It is a fundamental canon of

statutory construction that the words of a statute must be

read in their context and with a view to their place in the

overall statutory scheme.” Id. at 133. Accord Davis v. Mich-

igan Dept. of Treasury, 489 U.S. 803, 809 (1989). “A court

must therefore interpret the statute as a symmetrical and

coherent regulatory scheme, and fit if possible all parts

into an harmonious whole.” Food and Drug Administration,

529 U.S. at 133 (Internal citations removed).

A court must not defer when it “appears from the

statute or legislative history that the accommodation is

not one that Congress would have sanctioned.” Chevron,

467 U.S. at 845. In all cases, although the level of defer-

ence afforded an agency interpretation may appear high,

the court remains the final authority in matters of statu-

tory interpretation and “must reject administrative con-

structions which are contrary to clear congressional

intent.” Id. at 843 n.9.

The purpose and intent of the FMLA is readily appar-

ent from the statutory language and from the pertinent

legislative history. Under the Chevron analysis, the DOL’s

employer notice regulations at issue are impermissible

and must be struck down as beyond the clearly expressed

purpose and intent of the FMLA.

The Statute plainly states that an “eligible employee

shall be entitled to a total of 12 workweeks of leave

during any 12-month period... . ” 29 U.S.C. § 2912(a)(1).

“If an employer provides paid leave for fewer than 12

workweeks, the additional weeks of leave necessary to

attain the 12 workweeks of leave . . . may be provided

without compensation.” 29 U.S.C. § 2912(d)(1).

The substantive provisions of the statute show Con-

gressional intent to give employers and employees defi-

nite benefits. The provisions of the statute specifying that

each employee is eligible for a total of 12 weeks of leave

per year, if the employee has been employed for more

than a year, are meant to give employers and employees

assurances as to their respective rights. 29 U.S.C.

§ 2611(2)(A)(ii); 29 U.S.C. § 2612(a)(1). “The FMLA was

intended only to set a minimum standard of leave for

employers to provide to employees. Under the FMLA,

twelve weeks of leave is both the minimum the employer

must provide and the maximum that the statute

requires.” Ragsdale, 218 F.3d at 937.

An indication of the limited nature of the benefit that

Congress intended to grant to employees under the

FMLA is shown by the provision of the statute that deals

with married couples employed in the same workplace.

Anticipating that in some workplaces, both husband and

wife are employed and may seek leave for the same

FMLA qualifying condition, Congress addressed the situ-

ation. Section 2612(f) provides:

In any case in which a husband and wife are

entitled to leave . . . , [and] are employed by the

same employer, the aggregate number of work-

weeks of leave to which both may be entitled

may be limited to 12 workweeks during any 12-

month period, if such leave is taken -

(1) [for the birth of a son or a daughter

and in order to care for such son or

daughter, or because of the placement

of a son or daughter with the employee

for adoption or foster care]; or

(2) to care for a sick parent....

Id.

This provision is instructive with regard to the scope

and goals of the FMLA. In the absence of this provision,

both the husband and wife would each be eligible to take

12 workweeks of leave any time an event qualifying for

leave occurs. Thus, in the case of married employees, the

guarantee of 12 workweeks of leave arising from a single

event would in effect be converted to 24 weeks of leave.

Recognizing the unfairness of this result toward

employers in this situation, Congress reduced the possi-

ble leave available in the enumerated situations from 24

workweeks to a total of 12 workweeks of leave per quali-

fying event. This result affirms the FMLA’s goals of guar-

anteeing eligible employees 12 workweeks of medical

leave, but it also shows that in practice Congress

intended to avoid a situation in which the Statute would

award employees with more than 12 workweeks of medi-

cal leave.

Similar to the statutory text, the FMLA’s legislative

history supports the view that the FMLA was intended

only to be a statute that provided a minimum labor

standard; an assurance that employers would provide

employees with 12 weeks of leave every year.® See S. Rep.

No. 103-3, at 28 (1993), reprinted in U.S.C.C.A.N. 3, 30

(“Section 102(d) assures that an employee is entitled to

the benefits of applicable paid leave, plus any remaining

leave time made available by the act on an unpaid

basis.”); 103rd Cong. H381 (February 3, 1993) (statements

of Representative Clay on the Family and Medical Leave

Act) (“[A]s America’s work force changes to meet the

economic realities of the 1990's, it is critical that the work

force adapt to accommodate those changes. The Family

and Medical Leave Act, of which I have been a principal

sponsor for the past 8 years, will provide a minimum

labor standard to ease the new workplace burden of

balancing the demands of work and family. We are not

mandating anything. What we are doing is imposing a

standard of work conditions which is just and fair for our

work force. . . . The United States alone stands among all

industrialized countries in not having this minimum

labor standard for its workers.”); 103rd Cong. H387 (Feb-

ruary 3, 1993) (statements of Representative Snowe on the

Family and Medical Leave Act) (“Members of the House,

the Family and Medical Leave Act sends a clear message

to employers that minimal leave for family crises is as

important as workplace safety standards and minimum

wage. Dedicated legislators, like the gentlewoman from

5 When interpreting @ statute the Court will look at all

indicia of legislative intent. Cass v. United States, 417 U.S. 72,

77-79 (1974); United States v. American Trucking Associations, 310

U.S. 534, 542-44 (1940); United States v. Dickerson, 310 U.S. 554,

562 (1940).

New Jersey [Mrs. Roukema] and others, have taken pains

to ensure that the compromise version of the Family and

Medical Leave Act responds to the concerns of the busi-

ness community. Several safeguards and flexibility mea-

sures have been incorporated to protect employers and

eliminate potential abuse.”).

Any view of the FMLA other than that the twelve

weeks of leave is both the minimum the employer must

provide and the maximum that the statute requires will

upset the carefully crafted compromise reached by Con-

gress when it passed the FMLA. See H.R. Rep. No. 135(1),

at 37 (1991) (“The amount of time available for leave also

reflects a compromise. The leave period was reduced to

12 weeks in response to concerns raised by employers

who maintained that it was significantly easier to adjust

work schedules or find temporary replacements over the

shorter time period. While not ideal from the employees’

perspective, a 12-week minimum represents a middle

ground between the family needs of workers and

employer's business needs.”).

However, in spite of the text of the Statute and the

wealth of legislative comment that 12 weeks was

intended to be both the minimum and maximum that an

employer would be required to provide, the DOL pro-

mulgated regulations that require an employer to provide

more than 12 weeks of leave, unless the employer speci-

fically and prospectively informs the employee she is

using FMLA leave. According to the regulations, if the

employer fails to prospectively inform the employee that

the leave she is using is FMLA leave, then “none of the

absence preceding the notice to the employee of the

[FMLA] designation may be counted against the

employee's 12-week entitlement.” 29 C.F.R. § 825.208(c).

The DOL regulation at 29 C.F.R. § 825.700(a) basically

adopts the language of section 825.208(c) stating that “if

an employee takes paid or unpaid leave and the

employer does not designate the leave as FMLA, the

leave does not count against the employee’s FMLA enti-

tlement.”

The DOL argues that the FMLA enables the worker,

at the outset of leave, to plan his medical treatment or

care-giving activities with a degree of confidence that an

employer's unilateral leave policy could not provide. The

Secretary further argues that the full achievement of that

statutory purpose requires that the employee be made

aware at the outset of the statutory leave period of his

rights and responsibilities under the Act. (DOL Brief at

11). Neither the statute nor the legislative history indi-

cates any concern by Congress that employees be notified

so as to be able to plan their use of the leave. Further, a

reasonable and good faith reading of the Statute would

not lead an employee to believe that she is permitted to

plan medical treatments or care-giving activities that will

last longer than 12 weeks.® To the extent that the DOL

employer notice regulations seek to fill this perceived gap

in the statute it is broader than necessary to achieve its

purpose, and is punitive to those employers who have

provided at least 12 weeks of leave.

weeks of leave (30 weeks of company provided leave, plus 12

weeks of leave specifically designated as FMLA leave)

apparently to plan her cancer treatments.

The controversy surrounding the scope of the FMLA

when it was passed adds support to the position that the

Department of Labor exceeded the Statute when it issued

the employer notice regulations. Looking at the context of

the statute is appropriate when considering whether to

strike an agency regulation. See Christensen v. Harris Co.,

529 U.S. 576, 583 (2000). The FMLA was passed by Con-

gress over the objections of many employers. To address

the concerns of employers fearful of a new unrestrained

federal mandate, employers were given assurances that

this was a limited statute that simply instituted policies

that were like those that many of the best employers were

already granting.

The purpose of the statute compared to other legisla-

tion also militates against the employer notice regula-

tions. The FMLA is not remedial. Thus, unlike other

federal employment statutes, it should not be construed

broadly to the achievement of remedial goals. The court

“must take care not to extend the scope of the statute

beyond the point where Congress indicated it would

stop.” See United States v. Article of Drug . . . Bacto-Unidisk,

394 U.S. 784, 800 (1969) (expressing similar concern

toward statutes protecting public health). See also Food

and Drug Administration v. Brown & Williamson Tobacco

Corp., 529 U.S. 120, 161 (2000) (favorably citing Article of

Drug). Since the FMLA is not construed broadly, it is not

appropriate to interpret the statute solely for the benefit

of employees. Rather, the statute should be interpreted

impartially giving equal deference to all affected parties.

If the FMLA is viewed in this way, the employer notice

regulations are invalid to the extent they change the

balance in the statute between employers and employees.

To the extent the DOL employer notice regulations

require employers to provide, or employees to receive,

moie than 12 weeks of leave, the regulations are contrary

to the clear intent of the statute.

B. Even If The Court Finds That The FMLA Is

Somewhat Ambiguous And That Congress Left

A Gap For The Regulations To Fill, They Must

Still Be Held Invalid As They Are An Imper-

missible Construction Of The Statute.

Under Chevron, if Congress has not spoken on the

issue and has explicitly or implicitly left a gap for regula-

tions to fill, then the court must consider whether the

agency’s interpretation of the statute is based upon a

permissible construction of the statute. Chevron, 467 U.S.

at 843-44. See also INS v. Aguirre-Aguirre, 526 U.S. 415, 424

(1999) (if Congress has not specifically addressed the

question, a reviewing court must respect the agency’s

construction of the statute so long as it is “reasonably

related to the purposes of the enabling legislation”).

Under this second step of the Chevron analysis, an

agency’s interpretation ordinarily is accorded deference,

unless the regulation is “arbitrary, capricious, or mani-

festly contrary to the statute.” Chevron, 467 U.S. at 844.

See United States v. Mead Corp., 121 S. Ct. 2164, 2171 (2001)

(The agency’s construction of the statute is permissible

when it is not procedurally defective, arbitrary or capri-

cious in substance, or manifestly contrary to the statute).

Recent cases from this Court have shown flexibility

in applying Chevron. The Court has invalidated agency

actions where it found that Congress spoke directly to an

issue subject to regulation, and the agency regulation

conflicted with the clear intent of Congress, as well as

where Congress left the precise issue open, and the

agency action nonetheless went beyond a permissible

interpretation of the statute. Compare Food and Drug

Administration v. Brown & Williamson Tobacco Corp., 529

U.S. 120 (2000) (finding intent of Congress clear and

striking regulations) with N.L.R.B. v. Kentucky River Com-

munity Care, Inc., 121 S. Ct. 1861 (2001) (finding statute

ambiguous, but striking regulation as going beyond the

limits of the statute). Here, even if the Court finds the

FMLA to be somewhat ambiguous, the Court should

strike the DOL’s employer notice regulations.

A recent Supreme Court case lends support to the

invalidity of the DOL’s employer notice regulations. In

Whitman v. American Trucking Associations, Inc., 531 U.S.

457, 121 S. Ct. 903 (2001), the respondents, a group repre-

senting trucking companies, argued that under the Clean

Air Act, 42 U.S.C. § 7401, et seq., the EPA had the author-

ity to consider the cost of implementation when it set air

quality standards, even though the language of the stat-

ute only permits the EPA to consider public health con-

siderations. The respondents argued that, although the

cost of implementation was not specifically mentioned in

the statute, an implied purpose could be found in the

statute to consider implementation costs. Whitman, 121

S. Ct. at 910.

The Court found that there was no language in the

statute directing the EPA to consider the cost of imple-

mentation. Further, to the extent that the authority to

consider the cost of implementation was implied from the

statute, it would conflict with the specific and explicit

provisions of the statute that require the EPA to consider

public health concerns when setting air quality standards.

Because of the conflict between the proffered implied

purpose of the statute, and the clear intent of the statute,

the Court concluded that if Congress had wanted to give

life to the implied purpose of considering the cost of

implementation, it would certainly have mentioned it if it

had meant it to be considered. Since Congress did not

mention this purpose, and the purpose conflicts with a

stated purpose mentioned, it is invalid. Whitman, 121

S. Ct. at 910. The Court found that while the Clean Air

Act, was “to some extent ambiguous,” the agency’s inter-

pretation of the statute went “beyond the limits of what is

ambiguous and contradict[ed] what . . . is quite clear.” On

this basis, the regulation was struck down. Whitman

stands for the proposition that where an implied purpose

of a statute, one not explicitly stated in the text of the

statute, is sought to be given effect, and that implied

purpose conflicts with the clear intent of Congress, the

implied purpose could only be valid if Congress had

expressly included it in the statute. See Whitman, 121

S. Ct. at 901-910.

Here, the Department of Labor argues that the

implied purpose of the employer notice regulations, to

aid employees in planning their family and medical

leave, is valid and consistent with its authority under the

Statute to “prescribe such regulations as are necessary to

carry out” the provisions of the Act. See 29 U.S.C. § 2654.

Both Petitioner and the Department of Labor must admit

that the purpose of aiding employees in planning their

leave is not mentioned anywhere in the text of the FMLA.

Further, the operation of the DOL’s employer notice regu-

lations here, creating an open-ended leave entitlement,

conflict with the expressed and primary purpose of the

FMLA, granting employees a total of 12 weeks of FMLA

leave, as well as Congress’ admonition that the statute is

not to be construed so as to discourage more generous

employer leave provisions.

In Whitman, the Court also cautioned against allow-

ing apparent gaps in Congress’ directions in a statute to

be used by the regulatory agency to render provisions of

the statute nugatory in practice. See Whitman, 121 S. Ct. at

918. To allow regulations to render express provisions of

the statute inoperative “is to go over the edge of reason-

able interpretation. The [agency] may not construe the

statute in a way that completely nullifies textually appli-

cable provisions meant to limit . . .” the statute’s applica-

tion. Whitman, 121 S. Ct. at 918-919. Here, the actions of

the employer notice regulations render nugatory the stat-

utory provisions providing a total of 12 workweeks of

leave, as well as the provision that the statute will not

discourage more generous leave plans.

C. The Department Of Labor’s Employer Notice

Regulations Are Not Supported By The Notice

Provisions Contained In The FMLA.

The regulations ignore the fact that employers in the

United States usually provide some private leave bene-

fits. Outside of the somewhat narrow leave benefits pro-

vided by the FMLA, employees often have a range of

employer provided leave benefits to use in varying cir-

cumstances. Both the statute and legislative history

reflect Congress’ intent to fashion this leave consistent

with employers’ existing leave policies. The statute was

designed to provide a uniform minimum leave amount,

which may or may not require employers to modify the

amount of leave provided to employees.

The regulation’s assumption that the only way an

employee would know how much family or medical

leave she had remaining would be if the company for-

mally designates the leave is not appropriate or needed

where, as here, the employer has a published leave policy

more generous than the FMLA. Not only was Wolverine’s

policy published in the employee handbook, but it was

also contained within the collective bargaining agreement

between Wolverine and the employees’ union. The policy

provided for seven (7) months (30 weeks) of job-protected

leave for reasons covered by the FMLA. It also contained

other provisions more generous than contained in the

FMLA. Because of the publicized and well-known nature

of Wolverine’s leave policy, after Ragsdale used the first

month of leave she was aware, without Wolverine other-

wise informing her, that she had six months of leave

remaining. Ragsdale was able to plan her leave accord-

ingly.

In addition, the employer notice regulations are not

supported by the notice provisions contained in the stat-

ute, to the extent that the regulations unfairly penalize

employers who fail to give adequate notice to employees

that leave is FMLA leave. Where Congress wanted

explicit notice provisions with significant consequences,

it provided for them. 29 U.S.C. § 2613 (detailing notice

requirements for employees seeking leave). In 29 U.S.C.

§ 2612(e)(1), the statute details notice obligations of

employees to employers when the employee requests

qualifying leave under the FMLA. See Carter v. Ford Motor

Company, 121 F.3d 1146 (8th Cir. 1997) (holding that

employee merely informing the employer that he would

be out and did not know when he would return and

offering no further information was not adequate notice

under the FMLA). In 29 U.S.C. § 2614(b)(1)(A), the FMLA

allows an employer to refuse to restore a “highly com-

pensated employee” to his or her former position if hold-

ing open the position would cause “substantial and

grievous economic injury to the operations of the

employer.” In order to do so, however, the employer

must give notice to the employee “at the time the

employer determines such injury would occur” that the

employer does not intend to restore the employee to his

or her position. See 29 U.S.C. § 2614(b)(1)(B).

The notice provided by Congress in the form of a

posting requirement is the required and adequate notice

used for most every state and federal employment statute

including Title VII, the Americans with Disabilities Act,

The Age Discrimination in Employment Act; the Fair

Labor Standards Act, the Occupational Safety and Health

Act, state Workers’ Compensation acts, state wage pay-

ment acts, and a number of other employment statutes. It

is unclear from the FMLA that Congress intended the

DOL to go beyond this statutory employer notice.

Finally, where the FMLA does contain penalties aris-

ing from notice violations, it provides for monetary pen-

alties to encourage compliance. See 29 U.S.C. § 2619

(assessing monetary penalties for employers who do not

post notices on the premises of the employer explaining

FMLA rights). The preference for monetary penalties, like

in the Fair Labor Standards Act, is instructive. An

obvious alternative to the DOL to ensure that employees

receive notice of their leave rights is to levy monetary

sanctions against employers th at fail to give notice under

the regulations. :

With regard to the balance Congress explicitly struck

between employers and employees, see 29 U.S.C.

§ 2601(b)(1) & (3) (The FMLA’s purpose is to “balance the

demands of the workplace with the need of families . . . in

a manner that accommodates the legitimate interests of

employers.”), the employer notice sanctions shift that

balance in a manner not intended by Congress. The statu-

tory provisions indicate that Congress intended

employees to bear much, if not most, of the notice

requirements under the statute. They must request leave,

they must provide reasonable notice of the need for leave,

and they must satisfy the various certification require-

ments, which occur several times in the leave process.

The DOL’s employer notice provisions take the balance

that Congress created concerning notice requirements,

strip employees of their basic responsibilities under the

Act, and make employers the absolute guarantors of

employees’ rights under the Statute by imposing over-

broad penalties for an employer’s failure to adhere to its

regulations.

Neither the goals nor purposes of the FMLA, nor

considerations of possible harmful effects toward

employees justify upholding the regulations. There is

nothing about the text or goals of the FMLA that would

make striking these regulations unfair or improper.

Unlike other statutes administered by the Department of

Labor, the FMLA is a statute with very specific goals and

intent. It was not intended to remedy past abuses. The

improper nature of the DOL’s employer notice provisions

is outlined by the fact that even as the employer notice

provisions upset the balance contained in the statute

concerning notice burdens, they sanction employers in a

manner that burdens the core provision of the statute; the

simple guarantee to eligible employees of a uniform, total

of 12 workweeks of family and medical leave. More

importantly, the striking of this regulation will not pro-

duce a disproportionately negative impact on employees.

III. THE DEPARTMENT OF LABOR APPEARS TO

HAVE EXCEEDED ITS RULEMAKING AUTHOR-

ITY IN ITS PROMULGATION OF THE PRO-

PHYLACTIC EMPLOYER NOTICE

REGULATIONS GIVEN THAT CONGRESS ONLY

GRANTED IT GENERAL RULEMAKING

AUTHORITY IN THE FMLA.

The Department of Labor characterizes the employer

notice regulations (which penalize employers who fail to

give timely notice in accordance with their provisions) as

“prophylactic” regulations that provide as a categorical

matter that otherwise qualified periods of leave will not

be counted as FMLA leave if the employer fails to give

timely notice that the leave will be so treated. (DOL Brief

at 20). The Department of Labor admits that the pro-

phylactic regulations will sometimes place the employee

in a better position than if the employer had complied

with the regulations. Further, the Department of Labor

admits that in this matter the effect of the prophylactic

regulations was to create a viable FMLA cause of action

where one would not otherwise exist, even though Rags-

dale would not have been able to return to work at the

end of 12 weeks of leave if notice had been given. (DOL

Brief at 20). The prophylactic notice regulations were

chosen because a categorical rule is more predictable and

easier to administer than a non-prophylactic rule. (DOL

Brief at 20-21).

In support of its argument that the prophylactic regu-

lations here are valid, the Department of Labor cites to

cases in which Congress granted administrative agencies

remedial rulemaking authority. (DOL Brief at 22-23). Con-

gress can grant regulatory authority in various ways,

including both general and specific grants of authority.

Compare 42 U.S.C. § 2000e-12(a) (granting general author-

ity to the Equal Employment Opportunity Commission to

issue “suitable procedural regulations to carry out the

provisions of [Title VII]”) with 15 U.S.C. §§ 78n(e) &

78w(a)(1) (granting the Securities and Exchange Commis-

sion general administrative authority, but also giving the

Commission the power to define by rules and regulations

and prescribe means “reasonably designed to prevent,

such acts and practices as are fraudulent, deceptive, or

manipulative.”). In the FMLA Congress granted its basic

regulatory authority, providing that the Secretary of

Labor may “prescribe such regulations as are necessary to

carry out...” the Act. 29 U.S.C. § 2654. This general

grant of administrative authority is not the type of grant

that will generally support a prophylactic regulation.

The Department of Labor relies on two Supreme

Court cases to support its authority to promulgate the

prophylactic employer notice regulations. It cites Mourn-

ing v. Family Publications Serv., 411 U.S. 356 (1973) and

United States v. O'Hagan, 521 U.S. 642 (1997), as cases

where broad prophylactic regulations were approved by

this Court. (DOL Brief at 22-23). However, the Depart-

ment of Labor misconstrues the import of these cases. In

Mourning and O'Hagan, Congress had given the respec-

tive agencies explicit remedial authority beyond the stan-

dard administrative authority. This led to the adoption of

prophylactic regulations. f

In Mourning v. Family Publications Serv., the Court

considered whether the Federal Reserve Board exceeded

its administrative authority under the Truth in Lending

Act, 15 U.S.C. § 1601, et seq., when it issued rules requir-

ing Truth in Lending disclosures in situations in which

there were no finance charges. 411 U.S. at 372. A creditor

found in violation of the Act challenged the regulations,

arguing that the Truth in Lending Act only applied to

situations involving finance charges. Id. The Court

reviewed the grant of authority given to the Board in the

statute. In addition to the general grant of regulatory

authority, the statute provided that:

These regulations may contain such classifica-

tions, differentiations, or other provisions, and

may provide for such adjustments and excep-

tions for any class of transactions, as in the

judgment of the Board are necessary or proper

to effectuate the purposes of [the Act], to pre-

vent circumvention or evasion thereof, or to

facilitate compliance therewith.

Mourning, 411 U.S. at 361-62, 365-66.

The Court found that the above grant of remedial

authority permitted the Federal Reserve Board to issue

regulations that might go somewhat beyond the language

of the statute. The Court wrote that the grant of remedial

authority was made by Congress due to its knowledge

that “adroit and unscrupulous” creditors would try to

characterize their transactions “so as to fall one step

outside whatever boundary Congress attempted to estab-

lish. .. . ” The grant of prophylactic authority was

intended by Congress to empower the Federal Reserve

Board to draft rules that could prevent creditors from

-evading the statute, no matter what method was utilized.

Mourning, 411 U.S. at 359-60. Based on this goal, the

Court found that the regulations were valid.

The Mourning decision stresses two levels by which

Congress can give administrative authority. “Where the

empowering provision of the statute states simply that

the agency may ‘make . . . such rules and regulations as

may be necessary to carry out the provisions of the Act,

we have held that the validity of a regulation promul-

gated thereunder will be sustained so long as it is ‘see-

sonably related to the purposes of the enabling

legislation.’ ” Mourning, 411 U.S. at 369 (citing Thorpe v.

Housing Authority of City of Durham, 393 U.S. 268, 280-61

(1969)). However, where enabling provisions also provide

more specific authority to the administrative agency, such

as the authority to remedy attempts to evade the pur-

poses of the statute, a greater level of deference to admin-

istrative rulemaking exists, rising to an abuse of

discretion standard. Mourning, 411 U.S. at 370-71 (quoting

Gemsco, Inc. v. Walling, 324 U.S. 244, 255 (1945)). In

Mourning, since Congress expressly gave the Federal

Reserve Board authority to regulate to prever.t evasion of

the statute, the Board acted within its authority in pro-

mulgating a prophylactic regulation that was broad in its

application.

Similarly, in United States v. O'Hagan, 521 U.S. 642

(1997), this Court considered the validity of regulations

promulgated to enforce fraud provisions of the Securities

Exchange Act of 1934, 15 U.S.C. § 78a, et seq. Id. at 646-47.

The regulations in question broaden the reach of the

statutory fraud provisions that prohibit a person from

engaging in insider trading of stocks, to reach insider

traders that have no fiduciary relationship to participants

in the offer in question. An attorney prosecuted for fraud

challenged these regulations, and the challenge was

reviewed by this Court. Id. at 649.

As discussed by the Court, the Securities Exchange

Act of 1934 contains two grants of rulemaking authority.

Section 78w(a)(1) grants the Securities and Exchange

Commission (SEC) general rulemaking authority. In addi-

tion, the statute contains a more specific grant, which

provides that “the [SEC] shall, for the purposes of the

[fraud] subsection, by rules and regulations define, and

prescribe means reasonably designed to prevent, such

acts and practices as are fraudulent, deceptive, or manip-

ulative.” 15 U.S.C. § 78n(e).

In reviewing the regulation, the Court noted that

section 78n(e) “delegates definitional and prophylactic

rulemaking authority to the [SEC].” O'Hagan, 521 U.S. at

667. “A prophylactic measure, because its mission is to

prevent, typically encompasses more than the core activ-

ity prohibited.” Id. at 672-73.

The Court found the prophylactic rule related to

insider trading valid not because of the grant of general

rulemaking authority, but rather because Congress, as

part of the Securities and Exchange Act, gave the SEC

specific authority to engage in just this sort of rulemak-

ing. See Id. at 676 (“Rule 14e-3(a) is a proper exercise of

the Commission's prophylactic power under § 14(e).”).

This prophylactic power is contrasted from the Commis-

sion’s general rulemaking power contained in 15 U.S.C.

§ 78w(a)(1). See also Gemsco v. Walling, 324 U.S. 244,

257-58 (1945) (finding valid FLSA remedial regulation

based on statutory language directing DOL to “prevent

the circumvention or evasion” of wage orders).

Unlike the statutory provisions in Mourning and

O'Hagan, which contained specific prophylactic rulemak-

ing authority, when Congress adopted the FMLA, it gave

the Department of Labor the standard agency power to

regulate, but it did not give the Department of Labor

specific prophylactic rulemaking instructions. The lack of

specific prophylactic authority calls into question the

authority of the Department of Labor to issue broad

prophylactic regulations here. Further, it puts into focus

Respondent’s argument that the prophylactic employer

notice regulations needlessly conflict with the plain text

of the FMLA.

The characterization of the employer notice regula-

tions as prophylactic regulations by the Department of

Labor is meant, in part, to excuse the fact that the regula-

tions go beyond the plain language of the FMLA. How-

ever, cha. .cterizing these regulations as prophylactic or

categorical does not give the Department of Labor any

leeway to promulgate regulations that go beyond the

intent of Congress, and which violate the express provi-

sions of the statute. The cases the Department of Labor

cites in support of its authority to issue prophylactic

regulations here involve statutes that granted the agency

greater authority to regulate than here. These cases do

not support the Department of Labor’s prophylactic regu-

lation here.”

IV. REGARDLESS OF THE VALIDITY OF THE

DEPARTMENT OF LABOR’S EMPLOYER

NOTICE REGULATIONS, WOLVERINE’S FAIL-

URE TO DESIGNATE PETITIONER’S 30-WEEK

LEAVE AS FMLA LEAVE DID NOT OTHERWISE

INTERFERE WITH OR RESTRAIN PETI-

TIONER’S EXERCISE OF HER FMLA RIGHTS.

Even assuming the DOL employer notice regulations

are valid, Wolverine’s failure to specifically designate any

of Petitioner’s 30-week leave as FMLA leave did not

otherwise interfere with or restrain Petitioner’s exercise

of her FMLA rights. Petitioner received 30 weeks of leave

prior to being terminated under Wolverine’s sick leave

policy, and Petitioner was granted the full benefits con-

veyed by the FMLA. Moreover, the Petitioner was unable

to work at the conclusion of the 30-week leave in Septem-

ber 1996. In fact, Petitioner was unable to return to full-

time work until December 31, 1996. Therefore, under the

” Contrary to the Department of Labor’s implication in its

Brief that Respondent’s argument is somehow that the

regulations are deficient because it is overbroad (DOL Brief at

22-23), it is Respondent's position that Congress gave the

Department of Labor standard agency authority when it drafted

the FMLA, and that the Department of Labor exceeded that

authority by promulgating unwarranted prophylactic

regulations that squarely conflict with the purpose of the

statute, to ensure that employers give qualified employees a

total of 12 weeks of family and medical leave per year.

circumstances, no relevant consequence attended Wolver-

ine’s failure to designate Petitioner's leave as FMLA

leave.

The Second Circuit applied the same reasoning to a

case in which the plaintiff alleged he had been deprived

of proper notice required by the FMLA and DOL regula-

tions, ie., he was not told that he was limited to 12

workweeks of leave. In Sarno v. Douglas Elliman-Gibbons &

Ives, Inc., 183 F.3d 155 (2d Cir. 1999), the plaintiff had

suffered a serious injury, rendering him unable to per-

form his job and requiring an immediate, unanticipated

leave. The plaintiff was placed on FMLA leave. When,

after 12 weeks of unpaid leave, the plaintiff was unable to

return to work, he was fired. The district court dismissed

the plaintiff's FMLA claim, finding that even if the defen-

dant had failed to provide proper notice to the plaintiff, it

did not deny, interfere with, or restrain his exercise of

FMLA rights, because the plaintiff had received all of the

substantive rights conferred upon him by the FMLA. The

Second Circuit affirmed, holding that no rational fact

finder could conclude that the plaintiff's exercise or

attempted exercise of his FMLA rights was in any way

affected by the defendant's failure to inform him that the

FMLA entitled him to a leave of up to 12 workweeks. The

court reasoned that because the plaintiff's leave was

necessitated by an unanticipated medical condition, and

because his inability to return to work continued well

beyond his 12-week leave, it was. impossible for the

defendant's alleged failure to give proper notice to have

interfered in any way with the plaintiff's exercise of his

FMLA rights. See also Donnellan v. New York City Transit

Auth., No. 98 Civ. 1096 (BSJ), 1999 WL 527901 (S.D.N.Y.

Jul. 22, 1999) (transit authority did not violate FMLA

when it failed to restore employee, who was laid off as

part of a reduction in force after having received 17

weeks of leave following her injury, to the position she

held prior to layoff, where the right to be restored to the

former position only obtains when the employee is able

to return to her position at the conclusion of the FMLA

leave, and the employee remained unable to return to

work until approximately 40 weeks after she had been

laid off and more than one year after she had commenced

her leave).

Therefore, Respondent did not interfere with Peti-

tioner’s rights under the FMLA, since she received all the

benefits to which she was entitled under the FMLA and

since she was unable to return to her position at the

conclusion of her leave period. Here, Petitioner did not

return to full duty until December 31, 1996, more than

three months after her employment was terminated, and

more than ten months after she commenced her leave.

Under such circumstances, Respondent should not be

said to have interfered with Petitioner's FMLA rights.

CONCLUSION

For the above reasons, Respondent Wolverine World

Wide, Inc., respectfully requests this Honorable Court

find that the DOL’s employer notice regulations at 29

C.F.R. § 825.208 and 29 C.F.R. § 825.700(a), are contrary to

the plain text of the FMLA and go beyond the intent and

purpose of Congress in enacting the FMLA, and to the

extent they attempt to fill any gaps left by the statute they

are an impermissible interpretation of the statute, and

should be held invalid. Furthermore, Wolverine’s failure

to follow the DOL’s employer notice regulations, to the

extent they are valid, did not otherwise interfere with or

restrain Petitioner’s exercise of her FMLA rights.

Respectfully submitted,

RicHarp D. BENNETT

Counsel of Record

James Francis BARNA

WelntRAus, Stock, Bennett &

GrisHaM, P.C.

Renaissance Center

1715 Aaron Brenner Drive,

Suite 512

Memphis, fexnessee 38120

(901) 526-0431

Attorneys for Respondent

APPENDIX A

App. 1

STATUTORY PROVISIONS

AND REGULATIONS INVOLVED

29 U.S.C. § 2601 FINDINGS AND PURPOSES

(a) Findings

Congress finds that -

(1) the number of single parent households and

two-parent households in which the single parent or both

parents work is increasing significantly;

(2) it is important for the development of children

and the family unit that fathers and mothers be able to

participate in early childrearing and the care of family

members who have serious health conditions;

(3) the lack of employment policies to accommodate

working parents can force individuals to choose between

job security and parenting;

(4) there is inadequate job security for employees

who have serious health conditions that prevent them

from working for temporary periods;

(5) due to the nature of the roles of men and women

in our society, the primary responsibility for family care-

taking often falls on women, and such responsibility

affects the working lives of women more than it affects

the working lives of men; and

(6) employment standards that apply to one gender

only have serious potential for encouraging employers to

discriminate against employees and applicants for

employment who are of that gender.

(b) Purposes

It is the purpose of this Act -

App. 2

(1) to balance the demands of the workplace with

the needs of families, to promote the stability and eco-

nomic security of families, and to promote national inter-

ests in preserving family integrity;

(2) to entitle employees to take reasonable leave for

medical reasons, for the birth or adoption of a child, and

for the care of a child, spouse or parent who has a serious

health condition;

(3) to accomplish the purpose described in para-

graph (1) and (2) in a manner that accommodates the

legitimate interests of employers;

(4) to accomplish the purposes described in para-

graphs (1) and (2) in a manner that, consistent with the

Equal Protection Clause of the Fourteenth Amendment,

minimizes the potential for employment discrimination

on the basis of sex by ensuring generally that leave is

available for eligible medical reasons (including mater-

nity-related disability) and for compelling family reasons,

on a gender-neutral basis; and

(5) to promote the goal of equal employment oppor-

tunity for women and men, pursuant to such clause.

29 U.S.C. § 2612 LEAVE REQUIREMENT

(a) In general

(1) Entitlement to leave

Subject to section 2613 of this title, an eligible

employee shall be entitled to a total of 12 workweeks of

leave during any 12-month period for one or more of the

following: 7

(A) Because of the birth of a son or daughter of the

employee and in order to care for such son or daughter.

App. 3

(B) Because of the placement of a son or daughter

with the employee for adoption or foster care.

ter, or parent, of the employee, if such spouse, son,

daughter, or parent has a serious health condition.

(D) Because of a serious health condition that

makes the employee unable to perform the functions of

’ the position of each employee.

(2) Expiration of entitlement

The entitlement to leave under subparagraphs (A)

and (B) of paragraph (1) for a birth or placement of a son

or daughter shall expire at the end of the 12-month

period beginning on the date of such birth or placement.

(b) Leave taken intermittently or on reduced leave

schedule

(1) In general

Leave under subparagraph (A) or (B) of subsection

(a)(1) of this section shall not be taken by an employee

intermittently or on a reduced leave schedule unless the

employee and the employer of the employee agree other-

wise. Subject to paragraph (2), subsection (e)(2) of this

section, and section 2613(b)(5) of this title, leave under

subparagraph (C) and (D) of subsection (a)(1) of this

section may be taken intermittently or on a reduced leave

schedule when medically necessary. The taking of leave

intermittently or on a reduced leave schedule pursuant to

this paragraph shall not result in a reduction in the total

amount of leave to which the employee is entitled under

subsection (a) of this section beyond the amount of leave

actually taken.

App. 4

(2) Alternative position

If an employee requests intermittent leave, or leave

on a reduced leave schedule, under subparagraph (C) or

(D) of subsection (a)(1) of this section, that is foreseeable

based on planned medical treatment, the employer may

require such employee to transfer temporarily to an avail-

able alternative position offered by the employer for

which the employee is qualified and that -

(A) has equivalent pay and benefits; and

(B) better accommodates recurring periods of leave

than the regular employment position of the employee.

Except as provided in subsection (d) of this section,

leave granted under subsection (a) may consist of unpaid

leave. Where an employee is otherwise exempt under

regulations issued by the Secretary pursuant to section

213(a)(1) of this title, the compliance of an employer

with this subchapter by providing unpaid leave shall not

affect the exempt status of the employee under such

section.

(d) Relationship to paid leave

(1) Unpaid leave

If an employer provides paid leave for fewer than 12

workweeks, the additional weeks of leave necessary to

attain the 12 workweeks of leave required under this

subchapter may be provided without compensation.

App. 5

(2) Substitution of paid leave

(A) In general

An eligible employee may elect, or an employer may

require the employee, to substitute any of the accrued

paid vacation leave, personal leave, or family leave of the

employee for leave provided under subparagraph (A),

(B), or (C) of subsection (a)(1) of this section for any part

of the 12-week period of such leave under such subsec-

tion.

(B) Serious health condition

An eligible employee may elect, or an employer may

require the employee, to substitute any of the accrued

paid vacation leave, personal leave, or medical or sick

leave of the employee for leave provided under subpara-

graph (C) or (D) of subsection (a)(1) of this section for

any part of the 12-week period of such leave under such

subsection, except that nothing in this subchapter shall

require an employer to provide paid sick leave or paid

medical leave in any situation in which such employer

would not normally provide any such paid leave.

(e) Foreseeable leave

(1) Requirement of Notice

In any case in which the necessity for leave under

subparagraph (A) or (B) of subsection (a)(1) of this sec-

tion is foreseeable based on an expected birth or place-

ment, the employee shall provide the employer with not

less than 30 days’ notice, before the date the leave is to

begin, of the employee's intention to take leave under

App. 6

such subparagraph, except that if the date of the birth or

placement requires leave to begin in less than 30 days, the

employee shall provide such notice as is practicable.

(2) Duties of employee

In any case in which the necessity for leave under

subparagraph (C) or (D) of subsection (a)(1) of this sec-

tion is foreseeable based on planned medical treatment

the employee -

(A) shall make a reasonable effort to schedule the

treatment so as not to disrupt unduly the operations of

the employer, subject to the approval of the health care

provider of the employee or the health care provider of

the son, daughter, spouse, or parent of the employee, as

appropriate; and

(B) shall provide the employer with not less than 30

days’ notice, before the date the leave is to begin, of the

employee’s intention to take leave under such subpara-

graph, except that if the date of the treatment requires

leave to begin in less than 30 days, the employee shall

provide such notice as is practicable.

(f) Spouses employed by same employer

In any case in which a husband and wife entitled to

leave under subsection (a) of this section are employed by

the same employer, the aggregate number of workweeks

of leave to which both may be entitled may be limited to

12 workweeks during any 12-month period, if such leave

is taken -

(1) under s subsec-

tion (a)(1) of this he ln

aa a

App. 7

(2) to care for a sick parent under subpara-

graph (C) of such subsection.

29 U.S.C. § 2613 CERTIFICATION

(a) In general

An employer may require that a request for leave

under subparagraph (C) or (D) of section 2512(a)(1) of

this title be supported by a certification issued by the

health care provider of the eligible employee or of the

son, daughter, spouse, or parent of the employee, as

appropriate. The employee shall provide, in a timely

manner, a copy of such certification to the employer.

(b) Sufficient certification

Certification provided under subsection (a) of this

section shall be sufficient if it states -

(1) the date on which the serious health

condition commenced;

(2) the probable duration of the condition;

(3) the appropriate medical facts within

the knowledge of the health care provider

regarding the condition;

(4)(A) for of leave under section

2612(a)(1)(C) of this title, a statement that the

eligible employee is needed to care for the son,

daughter, spouse, or parent and an estimate of

the amount of time that such employee is

needed to care for the son, daughter, spouse, or

parent; and

App. 8

(B) for purposes of leave under section

2612(a)(1)(D) of this title, a statement that the

employee is unable to perform the functions of

the position of the employee;

(5) in the case of certification for intermit-

tent leave, or leave on a reduced leave schedule,

for planned medical treatment, the dates on

which such treatment is expected to be given

and the duration of such treatment;

(6) in the case of certification for intermit-

tent leave, or leave on a reduced leave schedule,

under section 2612(a)(1)(D) of this title, a state-

ment of the medical necessity for the intermit-

tent leave or leave on a reduced leave schedule,

and the expected duration of the intermittent

leave or reduced leave schedule; and

(7) in the case of certification for intermit-

tent leave, or leave on a reduced leave schedule,

under section 2612(a)(1)(C) of this title, a state-

ment that the employee’s intermittent leave or

leave on a reduced leave schedule is necessary

for the care of the son, daughter, parent, or

spouse who has a serious health condition, or

will assist in their recovery, and the expected

duration and schedule of the intermittent leave

or reduced leave schedule.

(1) In general

In any case in which the employer has reason to

doubt the validity of the certification provided under

subsection (a) of this section for leave under the subpara-

graph (C) or (D) of section 2612(a)(1) of this title, the

employer may require, at the expense of the employer,

App. 9

that the eligible employee obtain the opinion of a second

health care provider designated or approved by the

employer concerning any information certified under

subsection (b) of this section for such leave.

(2) Limitation

A healthcare provider designated or approved under

paragraph 1 shall not be employed on a regular basis by

the employer.

(d) Resolution of conflicting opinions

(1) In general

In any case in which the second opinion described in

subsection (c) of this section differs from the opinion in

the original certification provided under subsection (a) of

this section, the employer may require, at the expense of

the employer, that the employee obtain the opinion of a

third healthcare provider designed or approved jointly by

the employer and the employee concerning the informa-

tion certified under subsection (b) of this section

(2) Finality

The opinion of the third healthcare provider concern-

ing the information certified under subsection (b) of this

section shall be binding on the employer and the

employee.

(e) Subsequent recertification

The employer may require that the eligible employee

obtain subsequent recertifications on a reasonable basis.

App. 10

29 U.S.C. § 2615 PROHIBITED ACTS

(a) Interference with Rights

(1) Exercise of Rights

It shall be unlawful for any employer to interfere

with, restrain, or deny the exercise of or the attempt to

exercise, any right provided under this subchapter.

(2) Discrimination

It shall be unlawful for any employer to discharge or

in any other manner discriminate against any individual

for opposing any practice made unlawful by this sub-

chapter.

(b) Interference with Proceedings or Inquiries

It shall be unlawful for any person to discharge or in

any manner discriminate against any individual because

such individual -

(1) Has filed any charge, or has caused to be insti-

tuted any proceeding, under or related to this subchapter;

(2) Has given, or is about to give, any int..mation

in connection with any inquiry or proceeding relating to

any right provided under this subchapter; or

(3) Has testified, or is about to testify, in any

inquiry or proceeding relating to any right provided

under this subchapter.

App. 11

29 U.S.C. § 2619 NOTICE

(a) In General

Each employer shall post and keep posted, in con-

spicuous places on the premises of the employer where

notices to employees and applicants for employment are

customarily posted, a notice, to be prepared or approved

by the Secretary, setting forth excerpts from, or summa-

ries of, the pertinent provisions of this subchapter and

information pertaining to the filing of a charge.

(b) Penalty

Any employer that willfully violates this section may

be assessed a civil money penalty not to exceed $100 for

each separate offense.

29 U.S.C. § 2652 EFFECT ON EXISTING

EMPLOYMENT BENEFITS

(a) More Protective

Nothing in this Act or any amendment made by this

Act shall be construed to diminish the obligation of an

employer to comply with any collective bargaining agree-

ment or any employment benefit program or plan that

provides greater family or medical leave rights to

employees than the rights established under this Act or

any amendment made by this Act.

App. 12

(b) Less Protective

The rights established for employees under this Act

or any amendm<nt made by this Act shall not be dimin-

ished by any collective bargaining agreement or any

employment benefit program or plan.

29 U.S.C. § 2653 ENCOURAGEMENT OF MORE

GENEROUS LEAVE POLICIES

Nothing in this Act or any amendment by this Act shall

be construed to discourage employers from adopting or

retaining leave policies more generous than any policies

that comply with the requirements under this Act or any

amendment made by this Act.

29 U.S.C. § 2654 REGULATIONS

The Secretary of Labor shall prescribe such regula-

tions as are necessary to carry out subchapter I of this

chapter and this subchapter not later than 120 days after

February 5, 1993.

29 C.ER. § 825.208

(a) In all circumstances, it is the employer's respon-

sibility to designate leave, paid or unpaid, as FMLA-

qualifying, and to give notice of the designation to the

App. 13

employee as provided in this section. In the case of inter-

mittent leave or leave on a reduced schedule, only one

such notice is required unless the circumstances regard-

ing the leave have changed. The employer’s designation

decision must be based only on information received

from the employee or the employee’s spokesperson (e.g.,

if the employee is incapacitated, the employee’s spouse,

adult child, parent, doctor, etc., may provide notice to the

employer of the need to take FMLA leave). In any circum-

stance where the employer does not have sufficient infor-

mation about the reason for an employee’s use of paid

leave, the employer should inquire further of the

employee or the spokesperson to ascertain whether the

paid leave is potentially FMLA-qualifying.

(1) An employee giving notice of the need for

unpaid FMLA leave must explain the reasons for the

needed leave so as to allow the employer to determine

that the leave qualifies under the Act. If the employee

fails to explain the reasons, leave may be denied. In many

cases, in explaining the reasons for a request to use paid

leave, especially when the need for the leave was unex-

pected or unforeseen, an employee will provide sufficient

information for the employer to designate the paid leave

as FMLA leave. An employee using accrued paid leave,

especially vacation or personal leave, may in some cases

not spontaneously explain the reasons or their plans for

using their accrued leave.

(2) As noted in § 825.302(c), an employee giving

notice of the need for unpaid FMLA leave does not need

to expressly assert rights under the Act or even mention

the FMLA to meet his or her obligation to provide notice,

though the employee would need to state a qualifying

App. 14

reason for the needed leave. An employee requesting or

notifying the employer of an intent to use accrued paid

leave, even if for a purpose covered by FMLA, would not

need to assert such right either. However, if an employee

requesting to use paid leave for an FMLA-qualifying

purpose does not explain the reason for the leave - con-

sistent with the employer’s established policy or practice

- and the employer denies the employee’s request, the

employee will need to provide sufficient information to

establish an FMLA-qualifying reason for the needed leave

so that the employer is aware of the employee’s entitle-

ment (i.e., that the leave may not be denied) and, then,

may designate that the paid leave be appropriately coun-

ted against (substituted for) the employee’s 12-week enti-

tlement. Similarly, an employee using accrued paid

vacation leave who seeks an extension of unpaid leave for

an FMLA-qualifying purpose will need to state the rea-

son. If this is due to an event which occurred during the

period of paid leave, the employer may count the leave

used after the FMLA-qualifying event against the

employee’s 12-week entitlement.

(b)(1) Once the employer has acquired knowledge that

the leave is being taken for an FMLA required reason, the

employer must promptly (within two business days

absent extenuating circumstances) notify the employee

that the paid leave is designated and will be counted as

FMLA leave. If there is a dispute between an employer

and an employee as to whether paid leave qualifies as

FMLA leave, it should be resolved through discussions

between the employee and the employer. Such discus-

sions and the decision must be documented.

App. 15

(2) The employer’s notice to the employee that the

leave has been designated as FMLA leave may be orally

or in writing. If the notice is oral, it shall be confirmed in

writing, no later than the following payday (unless the

payday is less than one week after the oral notice, in

which case the notice must be no later than the subse-

quent payday). The written notice may be in any form,

including a notation on the employee’s pay stub.

for unpaid leave, or that paid leave taken under an exis-

ting leave plan be counted as FMLA leave, this decision

must be made by the employer within two business days

of the time the employee gives notice of the need for

leave, or, where the employer does not initially have

sufficient information to make a determination, when the

employer determines that the leave qualifies as FMLA

leave if this happens later. The employer’s designation

must be made before the leave starts, unless the employer

does not have sufficient information as to the employee's

reason for taking the leave until after the leave com-

menced. If the employer has the requisite knowledge to

make a determination that the paid leave is for an FMLA

reason at the time the employee either gives notice of the

need for leave or commences leave and fails to designate

the leave as FMLA leave (and so notify the employee in

accordance with paragraph (b)), the employer may not

designate leave as FMLA leave retroactively, and may

designate only prospectively as of the date of notification

to the employee of the designation. In such circum-

stances, the employee is subject to the full protections of

the Act, but none of the absence preceding the notice to

App. 16

the employee of the designation may be counted against

the employee’s 12-week FMLA leave entitlement.

(d) If the employer learns that leave is for an FMLA

purpose after leave has begun, such as when an employee

gives notice of the need for an extension of the paid leave

with unpaid FMLA leave, the entire or some portion of

the paid leave period may be retroactively counted as

FMLA leave, to the extent that the leave period qualified

as FMLA leave. For example, an employee is granted two

weeks paid vacation leave for a skiing trip. In mid-week

of the second week, the employee contacts the employer

for an extension of leave as unpaid leave and advises that

at the beginning of the second week of paid vacation

leave the employee suffered a severe accident requiring

hospitalization. The employer may notify the employee

that both the extension and the second week of paid

vacation leave (from the date of the injury) is designated

as FMLA leave. On the other hand, when the employee

takes sick leave that turns into a serious health condition

(e.g., bronchitis that turns into bronchial pneumonia) and

the employee gives notice of the need for an extension of

leave, the entire period of the serious health condition

may be counted as FMLA leave.

(e) Employers may not designate leave as FMLA leave

after the employee has returned to work with two excep-

tions:

(1) If the employee was absent from an FMLA rea-

son and the employer did not learn the reason for the

absence until the employee’s return (e.g., where the

employee was absent for only a brief period), the

employer may, upon the employee’s return to work,

App. 17

promptly (within two business days of the employee’s

return to work) designate the leave retroactively with

appropriate notice to the employee. If leave is taken for

an FMLA reason but the employer was not aware of the

reason, and the employee desires that the leave be coun-

ted as FMLA leave, the employee must notify the

employer within two business days of returning to work

of the reason for the leave. In the absence of such timely

notification by the employee, the employee may not sub-

sequently assert FMLA protections for the absence.

(2) If the employer knows the reason for the leave

but has not been able to confirm that the leave qualifies

under FMLA, or where the employer has requested medi-

cal certification which has not yet been received or the

parties are in the process of obtaining a second or third

medical opinion, the employer should make a prelimi-

nary designation, and so notify the employee, at the time

leave begins, or as soon as the reason for the leave

becomes known. Upon receipt of the requisite informa-

tion from the employee or of the medical certification

which confirms the leave is for an FMLA reason, the

preliminary designation becomes final. If the medical

certifications fail to confirm that the reason for the

absence was an FMLA reason, the employer must with-

draw the designation (with written notice to the

employee).

App. 18

29 C.ER. § 825.700(a)

(a) An employer must observe any employment

benefit program or plan that provides greater family or

medical leave rights to employees than the rights estab-

lished by the FMLA. Conversely, the rights established by

the Act may not be diminished by any employment bene-

fit program or plan. For example, a provision of a CBA

which provides for reinstatement to a position that is not

equivalent because of seniority (e.g., provides lesser pay)

is superseded by FMLA. If an employer provides greater

unpaid family leave rights than are afforded by FMLA,

the employer is not required to extend additional rights

afforded by FMLA, such as maintenance of health bene-

fits (other than through COBRA), to the additional leave

period not covered by FMLA. If an employee takes paid

or unpaid leave and the employer does not designate the

leave as FMLA leave, the leave taken does not count

against an employee’s FMLA entitlement.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.