Legal Updates

Court Rules Re-Hired Worker Eligible for FMLA Leave Based on His Prior Service to the Employer

A worker with only seven consecutive months on the job is eligible for leave under the Family and Medical Leave Act of 1993 (“FMLA”) based on his prior service to his employer, a federal appeals court ruled recently—even though the prior service ended more than five years earlier.

In Rucker v. Lee Holding Co., the U.S. Court of Appeals for the First Circuit (“First Circuit”) (which encompasses Maine, Massachusetts, New Hampshire, Rhode Island and Puerto Rico) said “yes” to a question that has vexed employers for years:  whether an employer must combine non-consecutive periods of employment for purposes of permitting an employee to satisfy the FMLA’s twelve (12) month eligibility requirement.  The FMLA defines “eligible employee,” in part, as one who has been employed “for at least twelve months” but is silent as to what significance, if any, an employer should place on gaps in employment.

In Rucker, an employee worked as a car salesman for a period of five (5) years.  The employee voluntarily terminated his employment and, five (5) years later, re-joined the employer on a full-time basis.  After only seven (7) months on the job, the employee injured his back and took medical leave.  Approximately two (2) months later, and while the employee was on medical leave, the employer terminated his employment.

The employee filed suit claiming that his termination violated the FMLA.  The employer defended on the ground that, at the time of his leave, the employee had been employed for only seven (7) consecutive months and, as such, failed to satisfy the FMLA’s twelve (12) month eligibility requirement.  The trial court agreed with the employer, holding that the employee could not combine his previous period of employment with his more recent period for purposes of determining FMLA eligibility.  The First Circuit, however, reversed this decision on appeal.

The First Circuit determined that the applicable FMLA provision, the legislative history of this provision, and the applicable U.S. Department of Labor (“DOL”) regulation are all ambiguous.  At the First Circuit’s request, the DOL submitted a brief, in which the DOL argued that the applicable regulation required employers to combine non-consecutive periods of employment for purposes of the FMLA’s twelve (12) month rule.  The First Circuit decided that the DOL’s interpretation of its own regulation was entitled to deference and, accordingly, ruled in favor of the employee.

Fortunately for employers, the First Circuit’s decision may not be the final word on this issue.  On December 1, 2006, the DOL sought public comments on its FMLA regulations, apparently for purposes of revising the regulations.  In doing so, the DOL specifically asked, among other things, for “input on whether and how to address the treatment of combining non-consecutive periods of service for purposes of meeting the 12 months requirement.”

The Firm made a submission to the DOL in response to its request for comments and, in fact, addressed the question raised in Rucker.  (If you would like a copy of that letter, please contact an attorney at the Firm.)

Meanwhile, employers are advised to review their FMLA policies and procedures to ensure consistency with the First Circuit’s Rucker decision.  As long as Rucker remains valid, which is presently the case, an employer who fails to credit all prior service—even prior service that took place years earlier—for purposes of determining FMLA eligibility may become exposed to FMLA liability.