Employer Not Required To Give Notice Of FMLA Leave
November 14, 2000
Marilyn J. Holifield- Miami
Calculating leave under the Family Medical Leave Act (FMLA) has never been without pitfalls. Indeed the regulations issued by the Department of Labor (DOL) created a pitfall for any employer that made the mistake of granting company leave to an employee without notifying the employee that such leave counted as FMLA leave. Under the DOL regulations, failure to give this notice entitled the employee to the full 12 weeks of unpaid leave under the FMLA even though the employee had used company leave that otherwise qualified as FMLA leave. Asserting the supremacy of the power federal courts have to overrule agency regulations where the agency interpretation of the statute is contrary to a clear congressional intent, the Eighth Circuit Court of Appeals joined the Eleventh Circuit Court of Appeals in striking down the DOL regulations requiring employers to designate employee leave as leave under FMLA. Ragsdale v. Wolverine Worldwide, Inc., (8th Cir. 2000).
In Ragsdale v. Wolverine, Wolverine allowed employees with six months service to take leave for up to seven months. Ms. Ragsdale had worked for Wolverine nearly eleven months before she received a diagnosis of cancer and requested medical leave. Ms. Ragsdale complied with company policy and requested monthly extensions of her leave. Wolverine granted each extension but did not notify Ragsdale of her leave eligibility under the FMLA or her right to have her leave designated as FMLA leave. Ultimately, Wolverine terminated Ragsdale because Ragsdale had exhausted her seven months of company leave and she was unable to return to work. Several days after the termination Ragsdale requested additional FMLA leave, but Wolverine informed her that she had requested and utilized all of her available leave. Ragsdale sued, and the district court granted summary judgment in favor of Wolverine.
The FMLA requires that an eligible employee shall be entitled to a total of 12 work weeks of leave during any 12-month period for one or more qualifying reasons. Although the FMLA directs the Secretary of Labor to issue regulations to carry out the FMLA, the statute does not require that the employer designate leave.
The DOL regulations provide that an employer’s failure to notify an employee that company leave was also designated as FMLA leave would result in the employee still retaining 12 weeks of entitlement to FMLA leave. 29 C.F.R. § 825.700 (a). Specifically, “[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 entitlement.” 29 C.F.R. §825.700(a).
Confirming that “the terms of the statute contemplate only that the employer will be required to provide a ‘total’ of 12 weeks of unpaid leave,” the Eighth Circuit unequivocally concluded that, “[T]he DOL regulations must be struck down.” The court noted, that “[u]nder FMLA, 12 weeks of leave is both the minimum the employer must provide and the maximum the statute requires.” The Eighth Circuit specifically agreed with the Eleventh Circuit: “that the DOL’s regulations improperly ‘convert’ the statute’s minimum of federally mandated unpaid leave into an entitlement to an additional 12 weeks of leave unless the employer specifically and prospectively notifies the employee that she is using her FMLA leave.” See McGregor v. Autozone, Inc., (11th Cir. 1999).
Recognizing that some situations may require employer-notice, the court in Ragsdale did not rule that all DOL regulations requiring designation of leave as FMLA-leave would be invalid. For example, it instructed that notice could be necessary where the employee claims that the sole reason she exceeded FMLA leave was due to the employer’s failure to give notice and the employee would have returned to work at the end of the 12 weeks.
Mindful that Wolverine had given Ragsdale seven months of medical leave, the Eighth Circuit affirmed summary judgment emphasizing that Wolverine’s technical violation of the designation regulations would be an “egregious elevation of form over substance” if Ragsdale were granted an additional 12 weeks of leave as a result of Wolverine failing to notify her that her leave counted as FMLA leave. Ruling that the DOL regulations directly contradicted FMLA by increasing the amount of leave an employer must provide, the Eighth Circuit held 29 C.F.R. § 825.700(a) invalid insofar as it purports to require an employer to provide more than 12 weeks of leave time.
For more information please contact Marilyn Holifield at 1-888-688-8500 or at mholifie@hklaw.com.
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