Jottings By An Employer's Lawyer

Tuesday, November 14, 2006

FMLA Crow Fails to Fly Again

As did the 5th Circuit last year (see "Not As the Crow Flies" FMLA Regulation Valid ), the 10th Circuit gives Chevron deference to the DOL's regulation that the FMLA 50 employees within 75 miles rule, means "surface" not "linear" or in the vernacular, as the crow flies, miles. Hackworth v. Progressive Casualty Insurance Co. (10th Cir. 11/14/06) [pdf]. It was a particularly bitter pill since the distance between offices that would tip the balance was 75.6 miles.

The court rejected the argument that the regulation was arbitrary even though courts use "as the crow flies" miles in enforcing the 100 mile limitation on service of process under the Federal Rules of Civil Procedure and in analyzing the relevant geographic market for antitrust liability under the Sherman Act. A clever argument according to the court, but unavailing since the underlying purposes are different.

One argument that was not made was coverage by estoppel which has been attempted in other cases, generally unuccessfully as well. Hackworth had actually been granted an FMLA leave and only when she wanted to return did the employer pull out its handy map.


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