Second Circuit Refuses to Enforce Department of Labor Regulation Which Effectively Broadens Class Of Employees Eligible for FMLA Leave
The Second Circuit Court of Appeals has joined several other federal courts in refusing to enforce 29 C.F.R. § 825.110(d), a regulation promulgated by the Department of Labor under the Family and Medical Leave Act (the "FMLA"). Woodford v. Community Action of Greene County Inc., Docket No. 00-7265 (2d Cir. Oct. 10, 2001).
To be eligible for leave under the FMLA, an employee must have worked for the employer for at least twelve months, and must have worked for the employer for at least 1,250 hours during the twelve months immediately preceding the start of the requested leave. The regulation at issue in Woodford states that, if an employee has not worked for the employer for at least twelve months, or has not worked the required 1,250 hours in the twelve months immediately preceding the requested time off,
the employer must either confirm the employee's eligibility based upon a projection that the employee will be eligible on the date leave would commence [because the required hours will have been worked in the interim] or must advise the employee when the eligibility requirement is met. If the employer confirms eligibility at the time the notice for leave is received, the employer may not subsequently challenge the employee's eligibility.
The plaintiff in Woodford had worked only 816.5 hours during the twelve month period immediately preceding her requested leave of absence. The employer intially responded to Woodford's request for leave by informing her that she was eligible for leave under the FMLA. Shortly thereafter, the employer notified Woodford that she was a "key employee" and therefore would not be reinstated to her former position at the end of her leave. Woodford went out on leave, and was discharged thereafter. She filed suit, alleging that the employer's refusal to reinstate her violated the FMLA.
The District Court granted summary judgment for the employer and dismissed the complaint, on the ground that Woodford was not eligible for leave under the FMLA because she had not worked 1,250 hours in the prior twelve months. On appeal, Woodford argued that the employer was barred from contesting her eligibility for leave under the FMLA because it had initially informed her that she was eligible. In so arguing, Woodford relied on the regulation quoted above, 29 C.F.R. § 825.110(d).
The Second Circuit noted that "a number of courts, including the Seventh and Eleventh Circuit Courts of Appeals, have examined 29 C.F.R. § 825.110(d) and struck it down because it impermissibly widens the statutory definition of an eligible employee." [See Federal Appeals Court Strikes Down Family Medical Leave Regulation.] The statute itself specifically provides that an employee is eligible for FMLA leave if he has worked for the employer for at least twelve months, and if he has worked for that employer for at least 1,250 hours during the previous twelve month period. Because the regulation Woodford relied upon effectively expands the statutory class of "eligible employees," the Second Circuit found that the regulation contradicts the express intent of Congress and is therefore invalid. It affirmed the District Court's grant of summary judgment to Woodford's employer.
The Woodford decision is certainly welcome news for employers in the New York metropolitan area. However, as the Court in Woodford pointed out, employees who rely to their detriment on an employer's assurance that they are eligible for FMLA leave may still have a viable cause of action under an equitable estoppel theory. Therefore, it remains crucial for employers to evaluate and communicate accurately an employee's eligibility or ineligibility for FMLA leave promptly after FMLA leave is requested.