Even for the most vigilant employers, the Family and Medical Leave Act (the
“FMLA”) can be a minefield of potential liability. The challenge of
maintaining compliance under the FMLA has become even more daunting in recent
years with federal courts around the nation construing the statute broadly in
favor of employees and – in many cases – expanding the protection afforded by
the language of the statute itself.
While it is common knowledge to employers with fifty or more employees within
a seventy-five-mile radius that the FMLA guarantees an eligible employee twelve
weeks of leave during a twelve-month period, the question often arises as to
what constitutes an “eligible” employee. The FMLA expressly provides that
an employee is “eligible” if he or she has been employed by the employer for at
least twelve months and has worked for at least 1,250 hours during the
twelve-month period immediately preceding the commencement of the leave, and yet
issues relating to eligibility under the FMLA remain heavily litigated.
And with many courts reticent to take any action that might restrict FMLA
rights, employees have been emboldened to push the envelope to obtain as much
protection as possible when taking time off from work.
It is against this legal backdrop that Kenneth Rucker decided to pursue his
own claim under the FMLA. The case was Rucker v. Lee Holding Co. d/b/a
Lee Auto Malls, No. 06-CV-02-PS, 2006 WL 598137 (D. Me. Mar. 10,
2006). First hired by Lee Auto Malls in 1994, Rucker quit his job in
1999. After a five-year hiatus, Rucker was rehired by Lee Auto Malls in
June of 2004. Seven months later, Rucker sustained a back injury that
required him to miss thirteen days of work during the course of the following
seven and a half weeks. On March 7, 2005, Lee Auto Malls terminated
Rucker’s employment on the undisputed basis that he had missed too much
work.
In the wake of his termination, Rucker sued Lee Auto Malls on the ground that
he was fired in retaliation for taking leaves of absences that – he claimed –
were protected under the FMLA. While there was no dispute that Rucker had
worked for at least 1,250 hours during the twelve-month period preceding his
back injury, the critical question was whether he had been employed for the
requisite twelve-month period prior to invoking the protection of the
FMLA. Lee Auto Malls sought to have Rucker’s claim summarily dismissed on
the basis that he had been employed for only seven months during his most recent
stint of employment and, as such, was not an “eligible” employee under the
FMLA. Noting that the regulations interpreting the FMLA expressly state
that “the twelve months [during which] an employee must have been employed by
the employer need not be consecutive months,” Rucker contended that the
literal meaning of the regulations permitted him to aggregate his former period
of employment (from 1994 to 1999) to his more recent period of employment (from
June of 2004 to March of 2005).
On March 10, 2006, the federal District Court for the District of Maine
dismissed Rucker’s claim. Finding that Rucker did not qualify as an
“eligible” employee, the Court rejected the notion “that two periods of
employment, separated by a conceivably limitless amount of time, can be
grouped to make an otherwise ineligible employee eligible.” The Court
further held that while an employee whose attendance is interrupted by “brief
periods” may be covered by the FMLA, neither the statute nor its corresponding
regulations should be read “so liberally [as to] allow an employee to leave an
employer for years or decades, only to return and immediately become an eligible
employee under the twelve-month requirement.”
Relying on this common sense perspective of the FMLA and its regulations, the
Court’s decision is a significant victory for employers in an era when employees
are increasingly mobile – often quitting their jobs to pursue other ventures,
only to return to their past employers several months or years later.
Glaringly absent from the Court’s decision, however, was any clear test for
determining when two periods of employment may be added together for purposes of
the FMLA. Indeed, while the Court’s rejection of Rucker’s claim
demonstrates that a separation of five years would be excessive, the question
remains as to precisely how much time may be considered brief enough to support
the aggregation of two separate stretches of employment under the FMLA.
Given this lingering uncertainty, and considering the potential liability
that may arise in the event of a wrong decision, it remains advisable for
employers to seek the assistance of counsel prior to taking any adverse action
against an employee for taking a leave of absence. Nevertheless, employers
should find solace in the Court’s holding that an employee who “severs all ties
for a period of years before returning” must start afresh in satisfying the
eligibility requirements under the FMLA before invoking its protection.
