hecourts have also invalidated DOL regulation 29 C.F.R. §825.110, which statesthat "if an employer fails to advise an employee whether the employee iseligible [for leave under the Act] prior to the date the requested leave is tocommence, the employee will be deemed eligible [for FMLA leave]."
The 7th Circuit Court of Appeal - covering Illinois, Indiana and Wisconsin - was thefirst to strike down the regulation. InDormeyer v. Comerica Bank-Illinois, 222 F.3d 579 (7th Cir. 2000), anemployee was deemed ineligible for FMLA leave because she had not worked for1,250 hours during the twelve months prior to her leave.
After working as a bank teller for less than two years, the employee was firedfor excessive absenteeism. The employee had been warned repeatedly and counseledregarding her absenteeism. Shortly before she was terminated by her employer,the employee became pregnant and requested FMLA leave, citing morning sickness.The bank's lack of response to her request formed the basis of the employee’sFMLA claim. Though the employee recognized that she had not worked the required1,250 hours required by the Act, she used the DOL regulation to argue that theBank's failure to respond to her request made her eligible to receive 12 weeksof leave.
The trial court dismissed the employees’ claim and the 7th Circuit upheld thedismissal. The 7th Circuit held that the DOL's authority to provide guidance for interpretation ofthe FMLA and to issue regulations does not mean that the agency can alterthe language and meaning of the Act. Thelanguage of the FMLA clearly states that only employees who have worked for1,250 hours in the previous twelve months are eligible for leave. The Court thenutilized a hypothetical situation that could result in situation where "anemployee who had worked for eight hours before seeking family leave would beentitled to family leave if the employer neglected to inform the employeepromptly that he or she was ineligible."
The 11th Circuit Court became the second federal appellate court to strike down the DOLregulatory guidance that creates automatic FMLA eligibility for any employee whohas not, prior to leave beginning, been alerted by his or her employer regardingFMLA eligibility. In Brungart v. BellSouth Telecommunications, Inc., No.99-14472 (11th Cir. October 24, 2000), the employee, who had first startedworking for her employee in 1991, began unpaid, non-FMLA leave on December 1,1994. The leave extended until September 1, 1996. On December 2, 1996, theemployee submitted a request for FMLA leave so that she could care for herailing mother and took her leave effective that same day.
She was absent for more than ten days December 2, 1996. However, it was notuntil nearly six weeks later when she was advised that she was ineligible forFMLA leave because she had not worked 1,250 hours in the prior 12 months. She inturn sued her employer for violations under the FMLA, saying that they theemployer had failed to inform her in a timely manner that her request for leavehad been denied. The lower court soon dismissed the claim, and the 11th Circuitaffirmed, in language strongly critical of the DOL.
The court determined that when an administrative agency seeks to"improve" legislation by altering the basic provisions of the law, ithas "gone too far." TheCourt also stated that the DOL had, "attempted to pry apart the clear wordsof the act in order to create a gap into which it can wedge its policypreference."
Theinformation contained in this article is intended to provide useful informationon the topic covered, but should not be construed as legal advice or a legalopinion. Also remember that state laws may differ from the federal law.