DOL Exceeds its Authority

April 15, 1998-The Family and Medical Leave Act (FMLA) provides eligible employees up to 12 weeks of unpaid leave a year in which, among other things, to recover from a serious health condition. An employee must work for 12 months and 1,250 hours to be eligible for FMLA leave. The Secretary of Labor is authorized to promulgate regulations to carry out the FMLA. A U.S. District Court in Virginia ruled that the Department of Labor (DOL) exceeded its authority, however, when it issued an FMLA regulation that contradicted the statute.

In Wolke v Dreadnought Marine, Inc., 954 F. Supp.1133 (E.D. VA 1997), Wolke had not worked for Dreadnought for 12 months prior to his need for a medical leave. Wolke was ineligible under the statute's language, but argued that he came under the wire of the FMLA, based on DOL regulation 29 C.F.R. 825.110(d). That regulation requires employers to tell employees who have not worked 12 months and 1,250 hours about their FMLA ineligibility before they go on leave. Wolke argued that, based on the regulation, Dreadnaught's failure to inform him of his ineligibility resulted in his automatic eligibility.

The Court found that the regulation "blatantly unconstitutional and invalid." The statute states that employees must work for 12 months and 1,250 hours to be eligible for FMLA leave and, thus, any DOL exceptions which shortened the eligibility period were impermissible regulatory creations. The Court held that the regulation did not clarify the FMLA, but contradicted the Congressional intent.

There is only one notice requirement in the FMLA statute-the requirement that employers post a notice about the FMLA. But, the FMLA regulations contain many additional notice requirements. Employers are well advised to stay tuned-in the wake of Wolke, we expect more challenges to the FMLA regulations.