FMLA: Ragsdale v. Wolverine Worldwide, NELA Amicus Brief

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Copies of the parties’ consent to the filing of this brief have been filed with the Clerk of the Court.

No part of the attached brief has been authored by counsel for either party or any other entity. In accordance

with Supreme Court Rule 37.6, amici state that no persons other than the amici curiae, its members or its

counsel made a monetary contribution to the preparation and submission of this brief, other than the counsel

for Petitioner, Luther O. Sutter, who has been a member of NELA and as such has paid general membership

dues.

Tracy Ragsdale v. Wolverine Worldwide, Inc., No. 00-6029, cert. granted, (6/25/2001)

INTEREST OF AMICI CURIAE

The National Employment Lawyers Association (NELA) is a voluntary membership

organization of over 3,000 lawyers who regularly represent employees in labor,

employment, and civil rights disputes. NELA is one of the largest organizations in the United

States whose members litigate and counsel individuals, employees, and applicants on claims

arising out of the workplace. As part of its advocacy efforts, NELA has filed numerous amicus

curiae briefs before this Court, singly or jointly with other amici. Some recent cases include

Pollard v. E. I. du Pont de Nemours & Co., 121 S.Ct. 1946 (2001); Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133 (2000); and Kolstad v. American Dental Association, 527

U.S. 526 (1999).

AARP is a nonprofit membership organization of more than 34 million persons, age 50 or

older, working or retired, that is dedicated to addressing the needs and interests of older

Americans. In 1993 the Family and Medical Leave Act (FMLA) was enacted with strong

support from AARP because of the horror stories of AARP members who lost their jobs either

when they became ill themselves or when they cared for their ill spouse, children, or parents.

Many AARP members are in that “sandwich” period of their lives where the responsibility for

rearing their own child while caring for parents, grandparents and other members of their

extended family falls on their shoulders. AARP, “I

IDDLE

EPORT ON

ULTICULTURAL

OOMERS

OPING WITH

AMILY AND

GING

SSUES

.”

Equal Rights Advocates (“ERA”) is a San Francisco-based human and civil rights

organization dedicated to securing legal and economic equality for women through litigation.

Since its inception in 1974, ERA has focused much of its effort on ensuring family-friendly

workplaces, representing plaintiffs in two of the first pregnancy discrimination cases heard by

the Supreme Court, Geduldig v. Aiello, 417 U.S. 484 (1974), and Richmond Unified School

District v. Berg, 434 U.S. 158 (1977). More recently, ERA has advised and represented

individual women on the application and interpretation of the Family and Medical Leave Act.

The Legal Aid Society - Employment Law Center (“The LAS-ELC”) is a non-profit

public interest law firm that focuses exclusively on employment-related issues affecting the

working poor throughout the nation. The LAS-ELC litigates enforcement actions under the

FMLA to protect the rights of low-income, working women and men to take family/medical

leave. For example, The LAS-ELC successfully litigated Mora v. Chem-tronics, Inc., 16 F.

Supp.2d 1192 (S.D. Cal. 1998) which decided a myriad of issues of first impression in the Ninth

and other Circuits, including what constitutes adequate notice by both the employer and

employee when the employee requests FMLA leave. The LAS-ELC continues its efforts to

promote and to protect workplaces that allow employees to balance the demands of work and

family.

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The National Depressive and Manic-Depressive Associationis a nonprofit organization,

based in Chicago, which is dedicated to more than20 million adults with depression, 2.5 million

adults with manic depression -- also known as bipolar disorder -- and their families. Its mission

includes improving access to care. The FMLA plays an important role in that regard by

protecting the jobs of patients and families during periods of illness.

The National Women's Law Center ("Center") is a nonprofit legal advocacy organization

dedicated since 1972 to the advancement and protection of women's rights and the corresponding

elimination of sex discrimination from all facets of American life. The Center focuses on major

policy areas of importance to women and their families, including employment, education,

family economic security, reproductive rights and health — with special attention to the needs of

low-income women. Fair and adequate family and medical leave policies and programs, which

allow women to balance their work and family responsibilities, are central to the Center’s goals.

The interest of amici in this case is to protect the rights of the clients of NELA members,

ERA and The LAS-ELC and to promote the mission of each Amici, by ensuring that the

FMLA’s goal of providing protected designated leaves of absence is fully realized. This cannot

happen when the FMLA is interpreted in a way which makes it more difficult for employees to

understand their rights under the Act.

Amici submit this brief because of the importance of the

issues at bar to furthering their goals.

INTRODUCTION

The Secretary of Labor’s notice regulations fill gaps in the statutory scheme of the

Family and Medical Leave Act of 1993, 29 U.S.C. §§ 2601 et seq. These regulations reasonably

prescribe what information employers must provide to employees and when and how they must

provide it.

This brief presents a detailed application of Chevron v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984), to the regulations in question. When Ragsdale v. Wolverine

Worldwide, Inc., 218 F.3d 933, 938, 8th Cir. 2000),

cert. granted, (June 25, 2001) invalidated the

notice regulations, the Eighth Circuit failed to consider whether “Congress has directly spoken to

the precise question at issue.” Chevron, 467 U.S. at 841. The court of appeals below failed to

recognize that there are gaps in the statute because the FMLA itself is silent as to the specifics of

the “notice an employer must give to an employee before designating his paid leave as FMLA

leave.” Plant v. Morton International, Inc., 212 F.3d 929, 935 (6

Cir. 2000), rehearing and

suggestion for rehearing en banc denied (July 25, 2000). Consequently, Ragsdale fails to give

the requisite deference to the notice regulations in question.

SUMMARY OF ARGUMENT

Congress enacted the FMLA to provide eligible individuals with assurance that an

employee's job, or an equivalent one, would be waiting upon his or her return to work. Price v.

City of Fort Wayne, 117 F.3d 1022, 1023 (7th Cir. 1997).

Chevron v. Natural Resources Defense Council, Inc., 467 U.S. 837, 841 (1984), states

that when “Congress has directly spoken to the precise question at issue” and the “intent of

Congress is clear” then the agency’s regulations must be set aside. However, if the agency’s

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view “fills a gap or defines a term in a way that is reasonable in light of the legislature’s revealed

design,” a court must defer to the agency’s judgment. Nationsbank of North Carolina, N.A. v.

Variable Annuity Life Ins. Co., 513 U.S. 251, 257 (1995).

In the instant matter, the Eighth Circuit erroneously concluded that Congress

unambiguously expressed its intent with respect to notice issues and the FMLA. Ragsdale v.

Wolverine Worldwide, Inc., 218 F.3d 933, 938-39 (8

Cir. 2000), citing 29 U.S.C. §2612(e)(1).

Consequently, the court of appeals failed to give “controlling weight” to the agency’s judgment.

513 U.S. at 257.

The court of appeals disregards the fact that there are gaps in the FMLA. “The FMLA

does not specify when the 12-weeks of FMLA leave begin or how FMLA leave is initiated. The

FMLA provides that an employer or an employee may substitute paid leave for unpaid leave, but

it does not specify how or when an employer or employee must inform the other that paid leave

will be substituted for unpaid leave.” Chan v. Loyola University Medical Center, 6 Wage &

Hour Cas.2d (BNA) 328, 1999 WL 1080372, slip op. at 7 (N.D. Ill. Nov. 23, 1999) (Gottschall,

D.J.); Plant v. Morton International, Inc., 212 F.3d 929, 935 (6

Cir. 2000).

The notice regulations are a reasonable interpretation of the FMLA and promote its

purposes. They are not intended to be a penalty or an entitlement by which employees can

obtain leaves longer than 12 weeks. Contra McGregor v. Autozone, 180 F.3d 1305, 1308 (11th

Cir.1999); Ragsdale v. Wolverine Worldwide, Inc., 218 F.3d 933, 939 (8

Cir. 2000). The

notice regulations reflect a “reasonable accommodation of conflicting policies” and deserve to be

upheld. Chan v. Loyola University Medical Center, 6 Wage & Hour Cas.2d (BNA) 328, 1999

WL 1080372, slip op. at 10 (N.D. Ill. Nov. 23, 1999), quoting Chevron, 467 US. at 843-44.

. . .

CONCLUSION

For the foregoing reasons, Amici respectfully urge that the judgment below be reversed

and the case remanded with the direction that the Secretary of Labor’s FMLA notice regulations

are valid and must be applied by the District Court.

Respectfully submitted,

AULA

RANTNER

ONALD

CHWARTZ

Senior Staff Attorney

Counsel of Record

National Employment Lawyers Association

EDBERG

OBIN

LAHERTY

HALEN

P.C.

600 Harrison Street, Suite 535

Three First National Plaza, Suite 1950

San Francisco, CA 94107

Chicago, Illinois 60602

(415) 227-4655

(312) 726-0236

Attorneys for Amici Curiae

National Employment Lawyers Association, et al.

Dated: September 7, 2001