|Jottings By An Employer's Lawyer|
Wednesday, December 15, 2004
10th Cir. - FMLA Regulation on "Worksite" Arbitrary, Capricious and Unenforceable
For purposes of determining that employee's eligibility, when an employee is jointly employed by two or more employers (see 29 C.F.R. §825.106), the employee's worksite is the primary employer's office from which the employee is assigned or reports. The employee is also counted by the secondary employer to determine eligibility for the secondary employer's full-time or permanent employees.The rub of course is that there were 50 employees within 75 miles of Golden, but not 50 employees within 75 miles of Brush. Under the regulation, Harpert was entitled to FMLA leave because she reported to Golden; HSG had denied her leave.
Since there was no argument for compliance under the regulation, HSG took another route and attempted to blow it up. Successfully as it turns out. Although the dissenting member of the panel, noted that it was "heavy medicine" to overturn a regulation, that is exactly what the Court found -- at least as applied in this circumstance, the regulation was "arbitrary, capricious, and manifestly contrary to the FMLA."
Although this exact fact pattern may not show up often, its significance may be that it is yet another FMLA regulation that an appellate court has refused to uphold. So far, the Clinton administration FMLA regulations have not fared all that well under Reagan/Bush (I and II) led courts. As more cases arise, stay tuned for more clashes.