by Maureen Minehan
A decision last month by the federal Eastern
District Court for Pennsylvania strikes down Department of Labor
(DOL) regulations related to notification under the Family and Medical
Leave Act (FMLA), leaving employers in a compliance quandary. The
decision reflects the continued schism among the courts on this
issue.
In Twyman v. Dilks, Betty Twyman, the former
vice president of real estate marketing at the University City Science
Center, sued the center for race discrimination and violation of
the FMLA when she was terminated following her return to work after
a 23-week absence due to injuries sustained while on the job. Twyman
argued that because the company did not notify her that 12 of the
23 weeks she was out qualified as FMLA leave, she was entitled to
an additional 12 weeks.
She cited DOL regulations that state, in part:
[I]f the employer has the requisite
knowledge to make a determination that 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, the employer may not designate the leave as FMLA retroactively
... none of the absence preceding the notice to the employee of
the designation may be counted against the employee's twelve-week
FMLA entitlement.
According to Twyman, based on the DOL regulations,
she should have been entitled to an additional 12 weeks of leave
on top of her 23 weeks because the science center did not notify
her that they had considered 12 of her 23 weeks of leave to be FMLA
leave.
DOL v. Congress
The court based its decision to dismiss Twyman's
FMLA claims on its analysis of the match between Congress' intentions
when drafting the law and the DOL's regulations. According to the
court, "when an analysis of the statute reveals a clear congressional
intent, a contrary agency interpretation is not entitled to deference.
But, if the language of the statute is ambiguous and there is no
clear congressional intent apparent from the legislative history,
the court must defer to a reasonable agency interpretation of the
relevant provision."
After reviewing the law and the regulations,
the court concluded that the regulations effectively create an entitlement
to an additional 12 weeks of leave whenever the employer fails to
prospectively notify the employee that he or she is using FMLA leave.
"This is directly inconsistent with the statute's express language
as the FMLA does not even suggest that the twelve week entitlement
may be extended," the court said. "Furthermore, where Congress intended
to include explicit notice provisions with significant consequences
for their violation, it provided for them in the language of the
statute." These provisions include notification to highly compensated
individuals that holding their positions open would cause substantial
economic injury to the organization and monetary penalties for employers
who do not post FMLA rights notices on their premises.
Finally, the court said, "the DOL regulations
are inconsistent with Congress' explicit purpose in enacting the
statute. Congress expressly stated one purpose of the FMLA was to
'balance the demands of the workplace with the needs of families
... in a manner that accommodates the legitimate interests of employers.'
To require an employer who already provides more than the required
twelve weeks of leave to give an employee an additional twelve weeks
of leave or face liability hardly seems to fairly accommodate the
interests of both parties." Based on these findings, Twyman's claim
was denied.
Circuit split
While the court's ruling in this case is very
clear, differences exist among the circuit courts on this issue.
Wendy Lazerson, an employment partner with Holland & Knight, LLP
in San Francisco, tells HRWire that Twyman "follows a couple of
other circuit decisions--the Eleventh and Eighth Circuits at the
appellate level have already gone the same way, ruling that the
regulations are invalid because they attempt to give employees more
rights than the FMLA intended, but the 6th Circuit went the other
way."
Lazerson says the DOL regulations don't work
"when you get down to the brass tacks of day-to-day life in the
HR department. The practical applications of the regulations don't
work in the real world. It's not a situation where everyone is always
aware of what needs to be said and at what time." She tells HRWire
that the courts that are ruling against the regulations are doing
so because, "the point is not to disadvantage employers for not
saying the right words."
Tom Christopher, a partner in the labor and employment
section of Kilpatrick Stockton in Atlanta who has litigated cases
under the FMLA, tells HRWire that when employees go out on leave,
their employers "are not necessarily thinking about notification--they
are thinking about how to deal with the situation." The DOL regulations,
he says, "make this an extremely technical statute."
DOL v. Employer
Christopher says this case "is a continuation
of the battle between employers and DOL over the extent to which
DOL can impose additional regulations based on statutes." He expects
additional court action on this issue and says, "employers should
watch this closely until it is absolutely certain that the regulations
won't be applied." He advises, "until this issue is completely resolved,
no matter where they are, employers ought to assume they have to
give notice in compliance with the DOL regulations, even if courts
have ruled that the regulations don't apply." There is, he says,
"always a chance the Supreme Court may change the law."
Lazerson agrees. "It's always a good idea to
be as thorough as you can," she tells HRWire. "Employers need to
be cautious because it's an open question. There's at least one
circuit saying it's okay and the regulations are still out there."
CASEFACTS
Court: U.S. Dist. Court for Eastern Dist. of Penn.
Date: Sept. 8, 2000
Citation: Twyman v. Dilks, No. CIV A 99-4378, 2000 WL 1277917
This article is courtesy of HRWire. All rights
reserved.
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