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Rucker Amicus Brief, in support of plaintiff-appellant

No. 06-1633
___________________________________________
___________________________________________

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

___________________________________________

KENNETH RUCKER,

Plaintiff-Appellant,

v.

LEE HOLDING CO. D/B/A LEE AUTO MALLS,

Defendant-Appellee.
___________________________________________

On Appeal from the United States District Court
for the District of Maine
___________________________________________

BRIEF FOR THE SECRETARY OF LABOR AS AMICUS CURIAE
IN SUPPORT OF PLAINTIFF-APPELLANT

___________________________________________

HOWARD M. RADZELY
Solicitor of Labor

STEVEN J. MANDEL
Associate Solicitor

PAUL L. FRIEDEN
Counsel for Appellate Litigation

BARBARA EBY RACINE
Attorney

Attorneys for Secretary of Labor
U.S. Department of Labor
Fair Labor Standards Division
200 Constitution Ave., N.W.
Room N-2716
Washington, D.C. 20210
(202) 693-5555

___________________________________________
___________________________________________

TABLE OF CONTENTS

TABLE OF AUTHORITIES

STATEMENT OF INTEREST OF THE SECRETARY OF LABOR

STATEMENT OF THE ISSUE

STATEMENT OF THE CASE

A.    Statement of Facts and Course of Proceedings

B.    District Court Decision

SUMMARY OF ARGUMENT

ARGUMENT

THE DEPARTMENT'S REGULATION AT 29 C.F.R. 825.110(b), AS CLARIFIED BY THE REGULATORY PREAMBLE, ESTABLISHES THAT RUCKER SATISFIED THE 12-MONTH EMPLOYMENT ELIGIBILITY REQUIREMENT

A.    The FMLA Is Silent as to Whether an Employee, to Be FMLA Eligible, Must Be Employed for 12 Consecutive Months with His Current Employer

B.    The Department's Applicable Regulation at 29 C.F.R. 825.110(b) States that the 12 Months Need Not Be Consecutive, but Does Not Resolve Whether a Five-Year Break in Service Is Disqualifying

C.    The Regulatory Preamble Clarifies that Breaks in Service of Two Years Would Not Be Disqualifying

D.    The Department's Regulation at 29 C.F.R. 825.110(b) as Clarified by the Regulatory Preamble Is a Permissible Construction of the FMLA's 12-Month Eligibility Requirement

E.    Uniform District Court Decisions Support the Department's Interpretation

F.    A Break in Service of Five Years Is at the Outer Bounds of What Is Permissible Under the 12-Month Employment Eligibility Requirement

CONCLUSION

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

Addendum:

Mitchell v. Cont'l Plastic Containers, Inc., No. C-1-197-412, 1998 U.S. Dist. LEXIS 21464 (S.D. Ohio Mar. 27, 1998), adopting 1998 U.S. Dist. LEXIS 21465 (S.D. Ohio Mar. 3, 1998)

TABLE OF AUTHORITIES

Cases:

Acs v. Detroit Edison Co., 444 F.3d 763 (6th Cir. 2006)

Auer v. Robbins, 519 U.S. 452 (1997)

Barnhart v. Sigmon Coal Co., 534 U.S. 438 (2002)

Barnhart v. Walton, 535 U.S. 212 (2002)

Bell v. Prefix, Inc., 422 F. Supp. 2d 810 (E.D. Mich. 2006)

Belt v. EmCare, Inc., 444 F.3d 403 (5th Cir. 2006)

Butzlaff v. Wis. Pers. Comm'n, 480 N.W.2d 559 (Wis. Ct. App. 1992)

Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984)

DeBraska v. City of Milwaukee, 131 F. Supp. 2d 1032 (E.D. Wis. 2000)

Dominion Energy Brayton Point, LLC v. Johnson, 443 F.3d 12 (1st Cir. 2006)

Dudley v. Hannaford Bros. Co., 333 F.3d 299 (1st Cir. 2003)

Garcia v. United States, 469 U.S. 70 (1984)

Harrell v. United States Postal Serv., 445 F.3d 913 (7th Cir. 2006), petition for cert. filed, 75 U.S.L.W. 3066 (U.S. Aug. 2, 2006) (No. 06-192)

Immigration & Naturalization Serv. v. Phinpathya, 464 U.S. 183 (1984)

Kosakow v. New Rochelle Radiology Assocs., P.C., 274 F.3d 706 (2d Cir. 2001)

Lange v. Showbiz Pizza Time, Inc., 12 F. Supp. 2d 1150 (D. Kan. 1998)

Mass. v. FDIC, 102 F.3d 615 (1st Cir. 1996)

McLaughlin v. Boston Harbor Cruise Lines, Inc., 419 F.3d 47 (1st Cir. 2005)

Mitchell v. Cont'l Plastic Containers, Inc., No. C-1-97-412, 1998 U.S. Dist. LEXIS 21464 (S.D. Ohio Mar. 27, 1998), adopting 1998 U.S. Dist. LEXIS 21465 (S.D. Ohio Mar. 3, 1998)

Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 125 S. Ct. 2688 (2005)

Perez v. Radioshack Corp., No. 02-C-7884, 2005 WL 2897378 (N.D. Ill. Nov. 1, 2005)

Robinson-Smith v. Gov't Employees Ins. Co., 323 F. Supp. 2d 12 (D.D.C. 2004)

Senger v. City of Aberdeen, S.D., __ F.3d __, 2006 WL 2787852 (8th Cir. Sept. 29, 2006)

Thomas Jefferson Univ. v. Shalala, 512 U.S. 504 (1994)

Trenkler v. United States, 268 F.3d 16 (1st Cir. 2001)

United States v. Mead Corp., 533 U.S. 218 (2001)

United States v. O'Hagan, 521 U.S. 642 (1997)

Walters v. Metro. Educ. Enters., Inc., 519 U.S. 202 (1997)

Federal Statutes and regulations:

Family and Medical Leave Act, 29 U.S.C. 26051 et seq.:

29 U.S.C. 2601(b)
29 U.S.C. 2611(2)(A)
29 U.S.C. 2611(2)(A)(i)
29 U.S.C. 2611(2)(A)(ii)
29 U.S.C. 2611(4)(A)(i)
29 U.S.C. 2614(a)(4)
29 U.S.C. 2616(a)
29 U.S.C. 2617(b)
29 U.S.C. 2617(d)
29 U.S.C. 2654

42 U.S.C. 2000e(b)

26 C.F.R. 31.6001-1(e)(2)

29 C.F.R.:

Section 516.5
Part 541
Part 825
Section 825.110
Section 825.110(a)
Section 825.110(a)(1)
Section 825.110(b)
Section 825.500(b)
Section 825.800

58 Fed. Reg. 13,394 (Mar.10, 1993)

58 Fed. Reg. 31,794 (June 4, 1993)

60 Fed. Reg. (June 6, 1995):

p. 2180
p. 2185

State Statutes and regulations:

N.J. Admin. Code 12:56-4.4 (2006)

Me. Rev. Stat. Ann. tit. 26 ' 665 (2006)

Wis. Stat. Ann. ' 103.10(2)(c) (West 2006)

Miscellaneous:

136 Cong. Rec. H2216 (1990)

Fed. R. App. P. Rule 29(a)

Fed. R. Civ. P. 12(b)(6)

H.R. 3445, 101st Cong. (1989)

H.R. 5374, 101st Cong. (1990)

H.R. Rep. No. 103-8, pt. 1 (1993)

S. Rep. No. 103-3 (1993), as reprinted in 1993 U.S.C.C.A.N. 3

Wage-Hour Opinion Letter, FMLA 2004-4, 2004 WL 3177913 (Oct. 25, 2004)

No. 06-1633
___________________________________________

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

___________________________________________

KENNETH RUCKER,

Plaintiff-Appellant,

v.

LEE HOLDING CO. D/B/A LEE AUTO MALLS,

Defendant-Appellee.
___________________________________________

On Appeal from the United States District Court
for the District of Maine
___________________________________________

BRIEF FOR THE SECRETARY OF LABOR AS AMICUS CURIAE
IN SUPPORT OF PLAINTIFF-APPELLANT

___________________________________________

STATEMENT OF INTEREST OF THE SECRETARY OF LABOR

    Pursuant to the Order of this Court dated August 21, 2006, and Federal Rule of Appellate Procedure 29(a), the Secretary of Labor ("Secretary") submits this brief as amicus curiae in support of Plaintiff-Appellant, Kenneth Rucker. This case concerns the proper interpretation of the requirement in the Family and Medical Leave Act ("FMLA" or "Act"), and the Department of Labor's ("Department") implementing regulations, that an "eligible employee" must have been employed for at least 12 months by the employer with respect to whom the FMLA leave is requested. 29 U.S.C. 2611(2)(A)(i); 29 C.F.R. 825.110(a)(1). Because the Department is responsible for the administration and enforcement of the FMLA, see 29 U.S.C. 2616(a), 2617(b), (d), and is responsible for promulgating legislative rules under the FMLA, see 29 U.S.C. 2654, it has a paramount interest in the correct interpretation of the Act and the Department's applicable regulations.

STATEMENT OF THE ISSUE

    Whether an employee met the 12-month employment eligibility requirement for taking FMLA leave when there was a break in service of five years between his prior employment of five years and his more recent employment of approximately seven months with the same employer.

STATEMENT OF THE CASE

A.    Statement of Facts and Course of Proceedings

    The plaintiff, Kenneth Rucker, worked at Lee Holding Company, d/b/a Lee Auto Malls ("Lee"), for approximately five years, at which point he left his employment there for about five years. Appendix ("App.") at 5. Lee rehired Rucker on June 4, 2004, following the five-year absence. Id. Rucker worked full-time, averaging 48 hours a week, until January 20, 2005, when he suffered a back injury. Id. He underwent medical treatment and missed approximately 13 days of work from January 20 until March 7, 2005. Id. On March 7, 2005, Lee discharged Rucker allegedly because he took leave to undergo medical treatment for his back injury. Id. [1]

    On January 5, 2006, Rucker filed a complaint in district court alleging that Lee violated the FMLA by terminating him for taking medical leave under the Act. App. at 1-3. The district court granted Lee's motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) on March 10, 2006, after determining that Rucker was not an eligible employee under the 12-month employment requirement of the FMLA. App. at 4, 6-9; see 29 U.S.C. 2611(2)(A)(i). Rucker appealed to this Court.

B.    District Court Decision

    The district court posed the issue as whether, for purposes of meeting the 12-month eligibility requirement at 29 U.S.C. 2611(2)(A)(i), Rucker could add his previous five years of employment to his recent period of approximately seven months of employment with the same employer, when there was an intervening gap of five years between the two periods. App. at 5. [2] The court interpreted the language in the applicable regulation stating that the 12-month employment requirement need not be consecutive to mean that, although brief interruptions in employment would not affect eligibility, two periods of employment separated by a "limitless" number of years cannot be combined to establish FMLA eligibility. Id. at 3-4; 29 C.F.R. 825.110(b). The court concluded that "[w]hile [the regulation] accommodates individuals whose employment might be intermittent or casual, it makes no allowance for an employee who severs all ties with the employer for a period of years before returning." App. at 7.

    In this regard, the district court noted that Congress was silent with regard to the eligibility of full-time, year-round employees who completely terminate their employment prior to returning to their jobs. App. at 7. In the court's view, it could not "imagine that the legislature would, without discussing or debating the issue, draft a statute allowing an employee to leave an employer for years or decades, only to return and immediately become an eligible employee under the twelve-month requirement." Id. Thus, without a clear showing by Congress, the district court was unwilling to allow Rucker to combine his recent employment of approximately seven months with his previous five-year employment period to meet the 12-month threshold eligibility requirement under the FMLA. Id.

SUMMARY OF ARGUMENT

    The language of the FMLA is ambiguous as to whether a significant break in service between employment periods with the same employer, such as the five-year break in this case, precludes meeting the 12-month eligibility requirement. The district court's conclusion that such a break precluded Rucker from satisfying this requirement is certainly a permissible interpretation of the statutory provision. However, the Department's regulation, particularly as clarified by the regulatory preamble, provided a different permissible interpretation of the provision; thus, the court's dismissal of Rucker's claim was erroneous.

    The Department's regulation at 29 C.F.R. 825.110(b), issued pursuant to express congressional authorization and after notice and comment, states that the 12 months an employee must have been employed by a particular employer "need not be consecutive months." This legislative rule, however, does not specifically answer the question posed by this case B- whether a five-year gap between periods of employment defeats the 12-month eligibility requirement. The preamble clarifies the regulation and, as a permissible interpretation of the Department's own regulation, is entitled to controlling Auer deference.

    In the preamble, the Department explicitly rejected "limiting the 12 months of service to the period immediately preceding the commencement of leave," and "excluding any employment experience prior to an employee resignation or employer-initiated termination that occurred more than two years before the current date of reemployment." 60 Fed. Reg. 2180, 2185 (Jan. 6, 1995). In this regard, the preamble explained that an employee's previous employment history generally will be disclosed upon his reapplying for employment with the same employer, and may be confirmed by the employer's records. Id.

    Thus, the district court erred by dismissing Rucker's FMLA claim on the ground that he severed all ties with his employer before returning years later. A break of five years, however, might very well constitute the outer bounds of eligibility in light of the underlying rationale provided in the preamble B- that, at some point, a break in employment would effectively sever the requisite connection between the employer and employee.

ARGUMENT

THE DEPARTMENT'S REGULATION AT 29 C.F.R. 825.110(b), AS CLARIFIED BY THE REGULATORY PREAMBLE, ESTABLISHES THAT RUCKER SATISFIED THE 12-MONTH EMPLOYMENT ELIGIBILITY REQUIREMENT

A.    The FMLA Is Silent as to Whether an Employee, to Be FMLA Eligible, Must Be Employed for 12 Consecutive Months with His Current Employer

    When interpreting a statute, a court must begin with the language of that statute to determine whether it has a plain meaning. See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984). Thus, the first step in any statutory construction case is to determine "whether that language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case." Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450 (2002) (citation and internal quotation marks omitted). If "the statutory language is unambiguous and the statutory scheme is coherent," the inquiry ceases. Id. (same). The statutory language is silent with regard to whether an employee, to be eligible under the FMLA, must be employed for 12 consecutive months immediately prior to the requested leave. [3]

B.    The Department's Applicable Regulation at 29 C.F.R. 825.110(b) States that the 12 Months Need Not Be Consecutive, but Does Not Resolve Whether a Five-Year Break in Service Is Disqualifying

    1.    "[I]f the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." Chevron, 467 U.S. at 843. In light of the silence of the statute in regard to whether the 12 months must immediately precede the commencement of an employee's leave, this Court must defer to the implementing agency's reasonable interpretation of the ambiguous provision. See Id. at 843-44; see also United States v. Mead Corp., 533 U.S. 218, 229 (2001). As this Court has stated, "If congressional intent is unclear and an agency's interpretation of a statute that it administers is reasonable, an inquiring court must defer to that interpretation." Dominion Energy Brayton Point, LLC v. Johnson, 443 F.3d 12, 15 (1st Cir. 2006); see also Harrell v. United States Postal Serv., 445 F.3d 913, 925 (7th Cir. 2006) ("Chevron instructs that we must defer to the reasonable interpretation of an agency tasked with administering" a statute like the FMLA), petition for cert. filed, 75 U.S.L.W. 3066 (U.S. Aug. 2, 2006) (No. 06-192). The Supreme Court recently reiterated that "[i]f a statute is ambiguous, and if the implementing agency's construction is reasonable, Chevron requires a federal court to accept the agency's construction of the statute, even if the agency's reading differs from what the court believes is the best statutory interpretation." Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 125 S. Ct. 2688, 2699 (2005). This is because "Chevron's premise is that it is for agencies, not courts, to fill statutory gaps." Id. at 2700.

    Chevron applies where Congress has delegated to an agency authority to "speak with the force of law." Mead, 533 U.S. at 229. As the Supreme Court noted in Mead, "[A] very good indicator of delegation meriting Chevron treatment [can be found] in express congressional authorizations to engage in the process of rulemaking . . . that produces regulations . . . for which deference is claimed." Id. Thus, a regulation promulgated pursuant to express congressional authorization and after notice and comment must be given "controlling weight unless [it is] arbitrary, capricious, or manifestly contrary to the statute." United States v. O'Hagan, 521 U.S. 642, 673 (1997) (citation and internal quotation marks omitted); see also Mass. v. FDIC, 102 F.3d 615, 621 (1st Cir. 1996).

    Under the FMLA, Congress explicitly delegated authority to the Department to issue rules and regulations "necessary to carry out [the Act]." 29 U.S.C. 2654. This is precisely the kind of express delegation that warrants application of Chevron to an agency's interpretation of an ambiguous statute. See Mead, 533 U.S. at 229; see also O'Hagan, 521 U.S. at 673.

    The Department clearly exercised its delegated rulemaking authority when it promulgated the FMLA regulations at 29 C.F.R. Part 825 after notice and comment. Shortly following the FMLA's passage on February 5, 1993, the Department issued a Notice of Proposed Rulemaking inviting public comment on issues to be addressed in the implementing regulations. See 58 Fed. Reg. 13,394 (Mar. 10, 1993). The Department published an Interim Final Rule and a request for further comments in the Federal Register on June 4, 1993. See 58 Fed. Reg. 31,794. After careful consideration of the comments it received, the Department promulgated its Final Rule. See 60 Fed. Reg. at 2180. Thus, the regulation at issue here, 29 C.F.R. 825.110, which was promulgated pursuant to explicit congressional authorization and after notice and comment, is a legislative rule warranting Chevron deference insofar as it directly addresses whether the 12 months are required to be consecutive. See Mead, 533 U.S. at 230-31.

    2.    The Department's legislative rule at 29 C.F.R. 825.110 states in relevant part that an "eligible employee" is someone who "(1) [h]as been employed by the employer for at least 12 months, and (2) [h]as been employed for at least 1,250 hours of service during the 12-month period immediately preceding the commencement of the leave." 29 C.F.R. 825.110(a). That portion of the regulation tracks the statutory language. The regulation further states:

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.

29 C.F.R. 825.110(b) (emphasis added).

    The first sentence of the regulation, by expressly stating that the 12 months "need not be consecutive months," makes clear that the 12 months need not be continuous, i.e., there can be a break in service without defeating eligibility under the FMLA. 29 C.F.R. 825.110(b). The next sentence of the regulation sets out how a week of employment is determined for purposes of meeting the 12-month eligibility requirement. The regulation states that a week is counted as a week of employment if an employee is maintained on the payroll for any part of that week during which other benefits or compensation are provided by the employer. See 29 C.F.R. 825.110(b); cf. Walters v. Metro. Educ. Enters., Inc., 519 U.S. 202, 207 (1997) (EEOC reasonably adopted "payroll method" under Title VII).

    The last sentence follows logically from the preceding sentences, stating that 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." 29 C.F.R. 825.110(b) (emphasis added) (internal quotation marks omitted). Thus, this last sentence, by referring to intermittent employment, reinforces that the required 12 months of employment need not be continuous. Accord 29 C.F.R. 825.800 ("Eligible employee means: (1) An employee who has been employed for a total of at least 12 months by the employer on the date on which any FMLA leave is to commence; and (2) Who, on the date on which any FMLA leave is to commence, has been employed for at least 1,250 hours of service with such employer during the previous 12-month period . . . .") (italics in original; emphasis added). [4] Therefore, although the plain language of the Department's regulations does not resolve whether the five-year gap between Rucker's two periods of employment totaling 12 months renders him ineligible under the FMLA or necessarily refute the district court's result, it does definitively direct that the 12 months are not required to be consecutive.

C.    The Regulatory Preamble Clarifies that Breaks in Service of Two Years Would Not Be Disqualifying

    The question presented by this case is addressed by the Department's interpretation contained in the regulatory preamble, and that interpretation supports a reversal of the district court's dismissal of Rucker's complaint. In the preamble, the Department considered and expressly rejected certain limitations on the 12-month employment requirement. The relevant section of the preamble, addressing 29 C.F.R. 825.110, states as follows:

    To be eligible for FMLA leave, an employee must have been employed for at least 12 months with the employer, and the 12 months need not be consecutive. Several commenters stated that determining past employment was burdensome, too indefinite, and urged various limitations on a 12-month coverage test. The Burroughs Welcome Company suggested excluding any employment experience prior to an employee resignation or employer-initiated termination that occurred more than two years before the current date of employment. Another commenter, the State of Kansas Department of Administration, suggested limiting the 12 months of service to the period immediately preceding the commencement of leave. The ERISA Industry Committee argued that the 12 months should be either consecutive months, or 12 months of service as computed under bridging rules applicable to employer's pension plans.
    Many employers require prospective employees to submit applications for employment which disclose employees' previous employment histories. Thus, the information regarding previous employment with an employer should be readily available and may be confirmed by the employer's records if a question arises. Further, there is no basis under the statute or its legislative history to adopt these suggestions.

60 Fed. Reg. at 2185.

    Thus, the Department rejected specific suggestions that would have required the 12 months of employment immediately to precede the taking of leave, or that would have permitted a short break in service (e.g., two years) to defeat the 12-month employment eligibility requirement. See 60 Fed. Reg. at 2185. [5] The preamble makes clear that the final regulatory test would not be an imposition on employers, because an employee's application for employment likely would disclose any previous employment, and that this information could be confirmed by the employer's records. Id. This refusal to accede to suggestions to limit eligibility based on a short break in service, taken together with the accompanying rationale, supports the conclusion that a five-year break in service, such as the one between Rucker's two periods of employment, does not unambiguously preclude eligibility under the FMLA's 12-month employment requirement. [6]

    Courts must give substantial deference to an agency's interpretation of its own regulations. Auer v. Robbins, 519 U.S. 452, 461 (1997). Thus, because the legislative rule is ambiguous as to whether an employee with a five-year gap between periods of employment maintains his eligibility under the statutory 12-month requirement, the Department's preamble statement (as well as the views expressed in this brief) should control. See Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994); see also Auer, 519 U.S. at 462 (deference to brief); Senger v. City of Aberdeen, S.D., __ F.3d __, 2006 WL 2787852, at *3 (8th Cir. Sept. 29, 2006) (controlling deference to the Department's consistent interpretation of its own regulation as contained in the preamble, a Wage-Hour opinion letter, and the Department's amicus brief); Acs v. Detroit Edison Co., 444 F.3d 763, 770 (6th Cir. 2006) (controlling deference accorded to a Wage-Hour opinion letter interpreting the Department's own regulation); Belt v. EmCare, Inc., 444 F.3d 403, 415 (5th Cir. 2006) (controlling deference given to the Department's interpretation of a regulation that was set out in an amicus brief, a Wage-Hour opinion letter, and Wage and Hour's Field Operations Handbook); DeBraska v. City of Milwaukee, 131 F. Supp. 2d 1032, 1034-37 (E.D. Wis. 2000) (controlling Auer deference accorded to Department's preamble, opinion letter, and amicus brief when the applicable regulations were deemed ambiguous); cf. Perez v. Radioshack Corp., No. 02-C-7884, 2005 WL 2897378, at *5 (N.D. Ill. Nov. 1, 2005) (referring to the preamble of newly issued Department regulations (29 C.F.R. Part 541) to explain the number of hours needed to meet the supervision requirement of the executive exemption from the Fair Labor Standards Act's ("FLSA") overtime provision); Robinson-Smith v. Gov't Employees Ins. Co., 323 F. Supp. 2d 12, 21-22 (D.D.C. 2004) (relying on the regulatory preamble to clarify newly issued Department regulations (29 C.F.R. Part 541) concerning the applicability of the administrative exemption from the overtime pay requirement of the FLSA).

D.    The Department's Regulation at 29 C.F.R. 825.110(b) as Clarified by the Regulatory Preamble Is a Permissible Construction of the FMLA's 12-Month Eligibility Requirement

    The Department's interpretation, that the 12 months "need not be consecutive months" (29 C.F.R. 825.110(b)) and that a two-year break in service between two employment periods does not defeat eligibility (preamble), is a permissible (although not the only) reading of the statute. It is supported by the language, structure, legislative history, and purposes of the statue.

    1.    The FMLA defines an "eligible employee" as "[a]n employee who has been employed -- (i) for at least 12 months by the employer with respect to whom leave is requested . . .; and (ii) for at least 1,250 hours of service with such employer during the previous 12-month period." 29 U.S.C. 2611(2)(A). It is significant that, with respect to the first prong, there is no limiting language as to when the 12 months must be served prior to the commencement of leave; by contrast, the 1250 hours must be served "during the previous 12-month period." Compare 29 U.S.C. 2611(2)(A)(i) with 29 U.S.C. 2611(2)(A)(ii) (emphasis added); see Dudley v. Hannaford Bros. Co., 333 F.3d 299, 309 (1st Cir. 2003) (by utilizing particular language in one section of a statute, but omitting it in another, Congress is generally presumed to be acting intentionally); Trenkler v. United States, 268 F.3d 16, 23 (1st Cir. 2001) (same). [7]

    Congress thus provided two distinct tests for FMLA eligibility and, consequently, two separate means of establishing the requisite connection with one's employer before an employee can take leave under the Act. The first prong is an employment requirement of 12 months with no explicit limiting temporal component. See 29 U.S.C. 2611(2)(A)(i). The second criterion is an hours of work requirement -- "1,250 hours of service with [the same] employer" -- with a specific temporal component -- "during the previous 12-month period." 29 U.S.C. 2611(2)(A)(ii). See Kosakow v. New Rochelle Radiology Assocs., P.C., 274 F.3d 706, 722 (2d Cir. 2001) ("In sum, questions of fact exist with respect to all three categories of hours Kosakow claims beyond the time reflected on her timesheets. If these questions are resolved in her favor, she will have worked 1259.75 hours in the twelve months prior to her leave, and would consequently be an eligible employee under the FMLA.") (emphasis added). Thus, Congress consciously adopted two different tests to gauge an employee's connection to his employer, only one of which, the 1250-hour requirement, contains an explicit temporal limitation. [8]

    2.    The relevant legislative history also supports the Department's interpretation. See Mass., 102 F.3d at 620 (if plain language does not answer the question at issue, "[o]ther indicia of the statute's meaning, particularly the legislative history, . . . come into play"). The Senate Committee Report states that "[t]he term 'eligible employee' is defined in section 101(2)(A) to mean an employee of a covered employer who has been employed by the employer for a total of at least 12 months." S. Rep. No. 103-3, at 23 (1993), as reprinted in 1993 U.S.C.C.A.N. 3, 25 (emphasis added). The Report goes on to state that "[t]hese 12 months of employment need not have been consecutive." Id. (emphasis added). The House Committee Report uses this same language in describing the 12-month requirement. See H.R. Rep. No. 103-8, pt. 1, at 35 (1993). These Committee Reports are "authoritative" sources for determining Congress' intent. Garcia v. United States, 469 U.S. 70, 75-76 (1984).

    3.    The purpose of the FMLA also is served by the Department's construction of the statutory 12-month requirement. That purpose is to balance employer interests with family needs, by allowing certain employees to take reasonable leave for medical conditions and family care. See 29 U.S.C. 2601(b). The 12-month "on-the-payroll" requirement ensures that for an employee to be eligible, he must have established substantial ties to a particular employer from whom leave is requested. The 1250-hours of service requirement, which must be fulfilled in "the previous 12-month period," 29 U.S.C. 2611(2)(A)(ii), ensures that the employee actually worked for a significant period of time -- almost eight months, assuming a 40-hour week -- immediately preceding the commencement of the FMLA leave before becoming eligible.

    An employee, therefore, cannot put his employer in the untenable position of having to grant him leave when the employee has just started working for that employer (even if the employee has worked for the employer for a lengthy period during a previous employment period). See 29 U.S.C. 2611(2)(A)(ii). By the same token, the regulation reasonably establishes eligibility in the following common scenario. A woman works for an employer for five years, has a child, and severs her employment relationship to care for that child for two years; she is thereafter rehired by that employer. The woman, upon her return to work for that employer, would be eligible for FMLA leave to care for the child in the event the child becomes seriously ill, as long as she has worked 1250 hours with such employer during the previous 12-month period.

    4.    In sum, the Department's interpretation, set forth in its legislative rule and preamble, is supported by the statutory language, structure, legislative history, and the purposes of the Act, and thus is a reasonable interpretation of the FMLA's 12-month employment eligibility requirement. Cf. Barnhart v. Walton, 535 U.S. 212, 218-20 (2002) (when considering whether an agency's interpretation of a statute is permissible, a court "must decide (1) whether the statute unambiguously forbids the Agency's interpretation, and if not, (2) whether the interpretation, for other reasons, exceeds the bounds of the permissible" ; among other factors, a court may consider whether the interpretation makes sense in terms of the statute's basic objectives, and whether it is one of a 'longstanding' duration"); Harrell, 445 F.3d at 927 ("Because the Department of Labor's regulations reasonably interpret ' 2614(a)(4) to allow a [collective bargaining agreement] to impose stricter return-to-work restrictions than those otherwise incorporated into the FMLA, we defer to that interpretation and hold that the Postal Service did not violate the FMLA when it required Mr. Harrell to comply with the return-to-work provisions set forth in the handbooks and manuals incorporated into the National Agreement.").

E.    Uniform District Court Decisions Support the Department's Interpretation

    Consistent district court decisions also support the Department's interpretation as set forth in its legislative rule, as clarified by the preamble. Recently, a district court in Michigan issued a decision holding, in reliance upon the statute and the Department's regulations, that a two-month break in service between two periods of employment with the same employer did not preclude eligibility under the FMLA. See Bell v. Prefix, Inc., 422 F. Supp. 2d 810, 811 (E.D. Mich. 2006). The employee had been employed for about six continuous months before his request for FMLA leave (and alleged he had worked 1250 hours), and had been employed for over 12 months during his first period of employment. Id. The court, denying the employer's motion to dismiss, examined the different statutory language governing the two eligibility requirements in 29 U.S.C. 2611(2)(A)(i) and (ii), and reasoned that "if Congress had intended to require 12 months of continuous employment, it could simply have done so by using the same language in both provisions." Id. at 813. Therefore, according to the court, "the language of the statute suggests that the 12 months do not have to be continuous." Id. at 812. The district court further stated that its reading of the FMLA is supported by the difference in the regulatory definition, at 29 C.F.R. 825.800, between the 12-month employment requirement and the 1250 hours of service requirement. Id. at 813. Specifically, the court stated that "[t]hose regulations use the wording 'a total of at least 12 months . . . on the date on which any FMLA leave is to commence' in describing the 12-month eligibility requirement, but in describing the 1,250 hours eligibility requirement, uses the language 'the previous 12-month period.'" Id. Thus, the district court concluded that the requisite 12 months of employment need not be consecutive.

    In another FMLA case, a district court adopted a magistrate's recommended order that a plaintiff who satisfied the hours of work requirement; previously worked for the defendant for almost twenty years, from September 1974 until March 1993; resigned and left defendant's employment for approximately two years; and returned from April 1995 until October 1995, when he took leave, "qualifies as an eligible employee under a plain reading of the statute." Mitchell v. Cont'l Plastic Containers, Inc., No. C-1-97-412, 1998 U.S. Dist. LEXIS 21464 (S.D. Ohio Mar. 27, 1998), adopting 1998 U.S. Dist. LEXIS 21465, at *34 (S.D. Ohio Mar. 3, 1998) (Hogan, Mag.) (attached as an Addendum to this brief). The magistrate found that "nothing in either the regulations [29 C.F.R. 825.110(b)] or the statute itself . . . precludes plaintiff from relying on his cumulative employment [which exceeded twenty years] when determining FMLA eligibility." Id. at *33.

    Finally, another district court, relying upon the Department's regulation at 29 C.F.R. 825.110(b), noted:

Although the face of plaintiff's complaint indicates that he was employed by defendant for less than 12 months at the time he began his leave, plaintiff also alleges in his complaint that he had been employed by defendant's predecessor company at some point prior to his employment with defendant. Bearing in mind the applicable standards at the motion to dismiss stage, the court concludes that plaintiff may be able to prove a set of facts in support of his theory that he is an "eligible employee" within the meaning of the FMLA.

Lange v. Showbiz Pizza Time, Inc., 12 F. Supp. 2d 1150, 1153 n.1 (D. Kan. 1998). Similarly, in the instant case, the district court should at least have concluded that it was possible for Rucker to show that he was an "eligible employee" within the meaning of the FMLA.

F.    A Break in Service of Five Years Is at the Outer Bounds of What Is Permissible Under the 12-Month Employment Eligibility Requirement

    In light of the above analysis, the Department urges this Court to reverse the district court's decision that the five-year gap between Rucker's two periods of employment defeated his eligibility under the 12-month requirement of the FMLA. A break in service of more than five years, however, could well attenuate the connection between the employee and his employer to such a degree that it would be fatal to FMLA eligibility under the 12-month criterion. One of the rationales propounded by the Department's preamble as to why a break in service would generally not present a problem -- that an employer would be able to confirm with its own records an employee's prior employment -- may be undercut if the gap between the two periods of employment were too lengthy. [9] In this regard, it bears noting that the Department's own regulations under the FMLA require that employers keep employment records for only three years. See 29 C.F.R. 825.500(b); see also 29 C.F.R. 516.5 (payroll records to be kept by employers for three years under the FLSA); 26 C.F.R. 31.6001-1(e)(2) (Internal Revenue Service requires tax records to be kept by employers for four years). Further, our survey of state law on the retention of employment records reveals that the vast majority of states do not require the maintenance of payroll records beyond three years, although some states do require an employer to keep payroll records for as long as six years. See, e.g., Me. Rev. Stat. Ann. tit. 26 ' 665 (2006) (three-year requirement in Maine, where the instant case arose); N.J. Admin. Code 12:56-4.4 (2006) (six-year requirement in New Jersey).

CONCLUSION

    For the foregoing reasons, this Court should reverse the district court's grant of Lee's motion to dismiss.

Respectfully submitted,

HOWARD M. RADZELY
Solicitor of Labor

STEVEN J. MANDEL
Associate Solicitor

PAUL L. FRIEDEN
Counsel for Appellate Litigation

___signed______________
BARBARA EBY RACINE
Attorney

U.S. Department of Labor
Office of the Solicitor
Fair Labor Standards Division
Room N 2716
200 Constitution Avenue, N.W.
Washington, D.C. 20210
(202)693-5555

CERTIFICATE OF COMPLIANCE

    This brief complies with the type-volume limitation of Fed. R. Ap. P. 32(a)(5) and (7). This document is monospaced, has 10.5 or fewer characters per inch, and contains 5881 words.

___signed______________
BARBARA EBY RACINE
Attorney

CERTIFICATE OF SERVICE

    I certify that on the 19th day of October 2006, a copy of the foregoing Amicus Brief for the Secretary of Labor has been served on the following:

Allan K. Townsend, Esq.
Law Offices of Peter Thompson
92 Exchange Street
Portland, ME 04101

James E. Fortin, Esq.
Douglas, Denham, Buccina & Ernst
103 Exchange Street
P.O. Box 7108
Portland, ME 04112-7108

Jeffrey Neil Young, Esq.
McTeague, Higbee, Case, Cohen,
Whitney & Toker, P.A.
Four Union Park
P.O. Box 5000
Topsham, ME 04086

Ann Elizabeth Reesman, Esq.
McGuiness Norris & Williams, LLP
1015 Fifteenth Street, N.W.
Suite 1200
Washington, D.C. 20005

___signed________
Barbara Eby Racine
Attorney

U.S. Department of Labor
Office of the Solicitor
Fair Labor Standards Division
Room N 2716
200 Constitution Avenue, N.W.
Washington, D.C. 20210
(202)693-5555


Footnotes

[1]    For purposes of Lee's motion to dismiss, the district court assumed Rucker's allegation as to the reason for his discharge to be true. See McLaughlin v. Boston Harbor Cruise Lines, Inc., 419 F.3d 47, 50 (1st Cir. 2005) ("[W]e must assume that all well-pleaded allegations in McLaughlin's complaint are true, and we must indulge all reasonable inferences from these allegations in her favor.").

[2]    For purposes of the motion to dismiss, both parties assumed that Rucker met the eligibility requirement of having worked at least 1250 hours during the 12-month period preceding his leave. App. at 5; 29 U.S.C. 2611(2)(A)(ii).

[3]    Of course, the question in this case is whether the required 12 months "on-the-payroll" must be both consecutive and immediately preceding the request for leave. When the Department's regulation at 29 C.F.R. 825.110(b) states that the 12-month period need not be "consecutive," see infra, it necessarily is stating that the 12 months need not immediately precede the taking of leave. Cf. 29 U.S.C. 2611(2)(A)(ii) (requiring that the requisite 1250 hours of service with an employer take place "during the previous 12-month period").

[4]    The opinion letters of the Wage and Hour Division of the Department ("Wage-Hour") are consistent with the interpretation set out in the legislative rule. See, e.g., Wage-Hour Opinion Letter, FMLA 2004-4, 2004 WL 3177913 (Oct. 25, 2004) ("The 12 months the employee has to have worked do not have to be consecutive.").

[5]    The Department did not address the effect of longer breaks in service.

[6]    As discussed infra, however, the Department does not believe that, for purposes of establishing eligibility, the permitted length of intervening time between employment periods with the same employer is unlimited. Certainly, the longer the break in service, the less likely an employee is to satisfy the 12-month eligibility requirement.

[7]    Congress knows how explicitly to limit an employment period. For instance, it defined "employer" under the FMLA to mean any person engaged in commerce who employs at least 50 employees "for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year." 29 U.S.C. 2611(4)(A)(i) (emphasis added); see also 42 U.S.C. 2000e(b) (defining "employer" under Title VII as having at least 15 employees "for each working day in each of twenty or more calendar weeks in the current or preceding calendar year") (emphasis added); cf. Immigration & Naturalization Serv. v. Phinpathya, 464 U.S. 183, 190 (1984) (absent a "moderating provision . . . Congress meant th[e] 'continuous physical presence' requirement to be administered as written" ; "[i]ndeed, the evolution of the deportation provision itself shows that Congress knew how to distinguish between actual 'continuous physical presence' and some irreducible minimum of 'non-intermittent' presence").

[8]    Proposed FMLA bills would have required 12 consecutive months of employment to be eligible, but none was enacted by Congress. See H.R. 3445, 101st Cong. ' 101(1)(B) (1989); H.R. 5374, 101st Cong. ' 101(1)(B) (1990). Indeed, the Wisconsin family and medical leave statute, a precursor to the FMLA, see, e.g., 136 Cong. Rec. H2216 (1990) (statement of Rep. Kleczka), specifically requires an employee to have worked for his employer "for more than 52 consecutive weeks" and "for at least 1,000 hours during the preceding 52-week period." Wis. Stat. Ann. ' 103.10(2)(c) (West 2006) (emphasis added). Even with this limiting language, a Wisconsin appellate court has held that the 52-consecutive-week requirement means "any fifty-two consecutive weeks of employment for th[e] employer, not the fifty-two consecutive weeks immediately preceding the disputed action." Butzlaff v. Wis. Pers. Comm'n, 480 N.W.2d 559, 562 (Wis. Ct. App. 1992). Of course, Rucker worked for Lee for some five consecutive years before the break in his employment, and thus would have met this test.

[9]    For example, one can posit the situation where a 16-year-old works for a fast-food chain during one summer, and then, many years later, returns to that same chain and works for 10 months before requesting FMLA leave. In that situation, not only would the connection between the employee and the employer be extremely attenuated, but the records to confirm the prior employment might no longer be available.