"Not As the Crow Flies" FMLA Regulation Valid
by Michael Fox
FMLA regulations have had their problems passing judicial scrutiny, but the 5th Circuit upholds the Secretary's method of calculating the 75 mile rule, affirming a summary judgment dismissing the claim of an employee that he had been terminated after taking FMLA leave. Under the FMLA, if there are less than 50 employees within 75 miles of your worksite, even though you meet all other conditions, you are not eligible for FMLA leave.
Here, the question was how the 75 miles was to be measured, as the crow flies or over public roads, as specified in 29 C.F.R. § 825.111(b).
In Bellum v. PCE Constructors, Inc.
(5th Cir. 4/25/05) [pdf] the Court had no qualms giving Chevron
deference to the rule. Bellum had argued that since the statute said 75 miles and did not set out a rule for how it was to be measured it should be done literally.
The Court first determined whether the statute was ambiguous in light of the traditional rules of statutory interpretation which include "the text itself, its history, and its purpose." Here, by means of a hypothetical using the Grand Canyon the Court illustrated how Bellum's rule would seriously undermine the purpose of the 75 mile rule, to minimize the impact on employers with limited work forces:
Suppose that Company A had its headquarters along the south rim of the Grand Canyon and a branch office on the other side only 25 miles away as the crow flies. Suppose further, quite plausibly, that the shortest distance between the two by public roads is 120 miles. Now, imagine that Company B has its headquarters next to a straight-line interstate highway and a branch office 80 miles away also right along the interstate. Under Bellum's reading of the statute, Company A would be bound by the FMLA but Company B would not be. Given that the purpose of the exception at 29 U.S.C. § 2611(2)(B)(ii) is to relieve the burden of FMLA compliance on companies with widely dispersed operations, it would make no sense to construe the statute in a way that subjects Company A but exempts Company B.
Having concluded from this that Congress' failure to provide a statutory means of calculating the 75 miles left an "implicit statutory gap," the Court found the Secretary's interpretation easily passed the test of not being " arbitrary, capricious, or manifestly contrary to the FMLA."
That second step (and standard) was important because in its own case law, the 5th Circuit had adopted the "as the crow flies" calculation for how the 100 mile rule for the service of process is determined. This was pointed out in a post-argument submission as a follow up to a question by one of the members of the panel. Having found a 5th Circuit case endorsing the crow-flying rule, Bellum and his counsel were no doubt encouraged. It was not meant to be however as the Court dealt with it in this footnote:
In Sprow, we concluded that measuring "as the crow flies" is the proper method for measuring the 100-mile distance for service of process under what was then FED. R. CIV. P. 4(f) and is now FED. R. CIV. P. 4(k)(1)(B). 594 F.2d at 417-418. In coming to this conclusion, we specifically rejected the use of road miles because that standard lacks uniformity and simplicity. Id. Even assuming arguendo that Rule 4(k)(1)(B) and 29 U.S.C. §2611(2)(B)(ii) are similar enough to warrant comparison, it is not necessary for us to address whether the considerations discussed in Sprow would lead to a better rule than the one devised by the Secretary of Labor because, in a Chevron case like this, the only question for us is whether the Secretary's construction of the statute is permissible, not the best. Having found that it is permissible, our inquiry is at an end.
In short, when dealing with regulations, never underestimate the power of Chevron.