New FMLA Ruling

HRinGA

This came out of the First Circuit Court regarding FMLA.
Employers must now be aware of an employee’s previous service with the company upon their re-hire, and they must compute a re-hired employee’s FMLA eligibility to include previous time with the company.
Case No. 06-1633. Kenneth Rucker v Lee Holding D/B/A Lee Auto Malls.

One more thing to make our lives that much more complicated.

AnneHa

I think that would only come into play if you rehired within a year. The regs say 1250 in the previous year, including non-continuous periods of time , I guess for seasonal workers and such. This shouldn't have too much of an impact on regular employers.

Anne in Ohio

HRinGA

oh, you should read this case. The guy had been gone for 5 years and the courts said it should be taken into consideration. My corporate office just sent memo reflecting the same. The lapse is irrelevant.

Irie

I read this and couldn't figure out how he qualified when the regs say 1,250 hours within the previous 12-month period. If he didn't work for the previous 12 months then how did he qualify? There was no clear explanation as to how this was computed. Did he maybe work 1,250 hours from the time he was re-hired? Maybe that's how they determined he was eligible.

HRinGA

Heck if I know. It came from California, so...you know...

What I interpreted was that the word "previous" did not necessarily mean "immediately preceding" the illness. "Previous" means anytime prior to his illness that he was actively employed. So if Susie worked for you 1/1/99-12/1/99, left and came back 1/1/07, she would be eligible because she already satisfied the requirement the first time she worked for you.
Ridiculous, I know.

lnelson

How can they do that when ERs only need to keep employment records for 3 yrs granted most ERs keep them longer. How can you substantiate he worked the time frame if he worked over 3 yrs prior to returning to your employ.

AnneHa

That is absolutely ridiculous. FMLA is in process for an update with employer input. This should be included as a problem that needs to be clarified.

Anne in Ohio

Irie

Anne: Do you really think anything will be done about overhauling FMLA? I don't. The people who made up this ridiculous entitlement aren't the ones who have to deal with this mess on a daily basis. If they did, a change would be very fast coming.

Everytime I read something about FMLA where an employer is getting sued the decision of the court is completely different than what is stated in the FMLA regs. It seems they make up the rules as they go along.

I have a very strong dislike for FMLA. While the intent is good, the administration and enforcement is horrible for all HR professionals who have to deal with this awful situation.

AnneHa

Well, Irie, I guess it won't make any difference what the law says. All that matters is the bizarre way it's interpreted by the courts.

Anne in Ohio

System

If I recall correctly, he was re-hired (after the 5 year break in service as mentioned above), and had worked for 7 months when he requested the leave - so its very conceiveable that he had the requisite 1250 hours worked. The company's position was that he didn't satisfy the 1 year service requirement, but the court ordered them to count his previous service......5 years prior. This decision is so ludicrous, its absolutely indefensible. Another example of courts and congress have no clue about how these ridiculous decisons and regulations cause businesses to consider foreign countries to relocate to.

jmcaa

Correct. He had the 1250 hours with the previous 12 month period, but had not worked the 1 year requirement UNLESS they take into account his previous employment with the employer.

SMace

[font size="1" color="#FF0000"]LAST EDITED ON 01-12-07 AT 11:32AM (CST)[/font][br][br]The 1st circuit covers these states: Maine, Massachusetts, New Hampshire, "Puerto Rico" and Rhode Island.

If you are not in one of those states I wouldn't jump off the deep end on this one. Even if you are (which we are) I wouldn't get too excited. I can't imagine that this will hold up or even apply to most situations.

You said you received it from corporate, right? Sounds like something that they sent out to say, "See we are relevant and important."

But, thanks for the info anyway. It's good to know what our good democratic states are up to.

System

SMace,
One of our companies is a Temp agency....they re-hire people all the time, most of whom never work for a full 12 months at a time. However, many of our temps work 1250 hours or more in a given year. Does this decision mean that we would be forced to calculate all previous service time towards satisfying the one year service rule under FMLA? As much as I would like to beleive you when you say this decision will not hold up or apply to most situations, Murphy's law will surely prevail. In our situation, I fear it may have very serious implications if this standard is adopted by other district courts. The thought of having to calculate someone's previous service in total who many have worked for us on 14 different occasions is sickening.

SMace

As to your question, I'm not even going to try to wrap my brain around it. I would be shocked if this one doesn't go on up to the Supreme Court.

As to this being adopted by other circuits, remember that this is one of the most liberal circuits in the country other than CA's circuit. Aren't they the 9th? Can't remebmer off the top of my head.

System

I do not understand why this decision is at all shocking. FMLA applies to employees who have worked for an employer for 12 months. Period. Nowhere in the statute is there any indication that those 12 months must be consecutive. In fact, the DOL's FMLA regulations clearly state: "The 12 months an employee must have been employed by the
employer need not be consecutive months." (29 CFR 825.100) I'm confused as to why this is news to anyone.

As for employers outside the jurisdiction of the First Circuit, I defnitely would take note - in interpreting federal statutes, courts must give deference to reasonable interpretations of the statutes' enforcing agencies, and I don't see how the DOL's interpretation is unreasonable, given that the FMLA statute is ambiguous at best. If this case does go to the Supreme Court, I would expect the Supreme Court to affirm this decision, in which case there would be no question as to whether it applies to all employers.

Okay, time for me to start my weekend! :-)

hrpagersd

That statement is written, but the rest of that section reads as below, which I think changes the meaning again and doesn't make it as clear cut as if you just read the one line.

"The 12 months an employee must have been employed by the employer need not be consecutive months. If an employee is maintained on the payroll for any part of a week, including any periods of paid or unpaid leave (sick, vacation) during which other benefits or compensation are provided by the employer (e.g., workers' compensation, group health plan benefits, etc.), the week counts as a week of employment. For purposes of determining whether intermittent/occasional/casual employment qualifies as ``at least 12 months,'' 52 weeks is
deemed to be equal to 12 months."

System

Yes, the rest of that section is what makes the FMLA language ambiguous, which is how the issue got before a court in the first place. However, the Department of Labor is the regulatory agency that has the authority of implementing the FMLA, and it has consistently interpreted the language in that section to mean that the 12 months of employment are cumulative over different periods of employment. While the FMLA itself may not be clear, the DOL's regulations state that interpretation clearly, and unless a court decides that it is unreasonable to interpret the FMLA the way the DOL has, the court *must* follow the DOL's interpretation. And since everyone seems to agree that the FMLA is ambiguous at best, I think it would be very unlikely for a court to rule that the DOL's interpretation is completely unreasonable, and if a court did make such a ruling, I would expect it to be reversed on appeal.

Personally I don't read the latter sentence(s) in the statute as modifying the first (and apparently the DOL doesn't either). If an employee is maintained on the payroll, or if the employee is on leave, that employee is still employed by the employer. So the situation described in those later sentences doesn't even apply to the first - does anyone really ever claim that if an employee goes out on vacation or takes sick days in the course of a year, then the person wasn't continuously employed for that year? So the second sentence just provides extra information with respect to calculating the twelve months. In fact, that very last sentence you posted ("For purposes of determining whether intermittent/occasional/casual employment qualifies as 'at least 12 months,' 52 weeks is
deemed to be equal to 12 months.") further supports the interpretation that the First Circuit adopted. This sentence demonstrates that the FMLA itself recognizes that an employee who is employed on an intermittent, occasional, or casual basis can be entitled to FMLA leave. Employees who work for an employer for 12 months straight typically don't fall into the intermittent, occasional, or casual worker category.

HRinGA

But how far back do you go? We can't hold employment records forever. Where do you draw the line? 5 yrs, 7, 10? We bridge employees' service if we rehire within a year. But anything longer and you start over. This isn't fair to other employees. 5 yrs is too long. I still think it's a crock.

Irie

I agree. It should be current employment. Why is it fair for someone to work for say two years, leave for a long period of time, come back and then be entitled to FMLA? (Perhaps I answered my own question when I used the word "entitled".)

Let's just let everyone be eligible for FMLA then we won't have these issues.

Tammy Binford

Maine Employment Law Letter has covered this case with an extensive article in the January issue. You can find it by searching the Subscribers Area of HRhero.com with the following search terms: Rucker Lee FMLA. (Be sure to click on either Maine or All States when you search.)

Tammy Binford
Editor, M. Lee Smith Publishers

HRinGA

from the article:
"If you rehire an employee, even after an extended break in employment, you should count the employee's period of prior employment toward the FMLA eligibility requirements. That means that returning employees may be eligible for leave as soon as they've worked 1,250 hours for you in their new period of employment."

So it looks like they at least have to accumulate the 1,250 hrs. Which takes 6-7 months based on a 40hr work week. I would hope that standard remains in place.