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NO ELIGIBILITY FOR LEAVE UNDER FMLA DESPITE DOL REGULATION Regardless of a Department of Labor regulation requiring an employer to advise an employee of the latter’s eligibility for leave, the 7th U.S. Circuit Court of Appeals ruled that an employee was not entitled to leave under the Family Medical Leave Act because she failed to satisfy the Act’s eligibility requirements. The employee had not worked at least 1,250 hours during the 12 months preceding the day on which she wanted to take family leave. Regarding the regulation in question, 29 C.F.R. 825.110(d), the court noted that “[a]s several district courts have found (there are no appellate decisions), the regulation is invalid.” The court found that the FMLA’s text is “perfectly clear and covers the issue,” and therefore the right of family leave “is conferred only on employees who have worked at least 1,250 hours in the previous 12 months” ( Dormeyer v Comerica Bank, 7thCir, 141 LC �34,099). REGULATION REQUIRING EMPLOYER TO DESIGNATE FMLA LEAVE INVALID Similarly, the 8th U.S. Circuit Court of Appeals invalidated FMLA regulation, �825.700(a). The regulation prohibits employers that have failed to specifically and prospectively designate an employee leave as FMLA leave from counting any leave taken against the employee’s twelve-week entitlement. The 11th Circuit reached the same conclusion in McGregor v Autozone, Inc, 11thCir, 138 LC �33,915, stating that the regulation’s notice requirement, which also appears in �825.208(c), conflicted with the FMLA’s creation of a narrow entitlement to twelve-weeks of leave within a twelve-month period ( Ragsdale v Wolverine Worldwide, Inc, 8thCir, 141 LC �34,104). The 8th Circuit noted that the FMLA does not require employers to designate FMLA leaves. Due to the FMLA’s lack of notice requirements, the Department of Labor issued regulations requiring employers to notify employees when a company leave, whether paid or unpaid, was an FMLA leave and established severe consequences if employers failed to provide such notice. However, where Congress intended explicit notification provisions with significant consequences for violations, it provided for them within the text of the statute, stated the court. Moreover, the legislative history indicated that the statute was intended to establish minimum labor requirements to assure that employees received at least twelve-weeks of leave within a twelve-month period. Section 825.700(a) failed to appreciate the difference between situations that required notification from employers in order to protect the substantive rights of employees and those situations that did not, stated the court. The DOL improperly changed the FMLA into a statute that provided for an additional twelve-weeks of leave if an employer failed to prospectively notify an employee that their leave would be counted against their twelve-week entitlement. Therefore, the court concluded that �825.700(a) was based on an impermissible interpretation of the FMLA. � 2000, CCH INCORPORATED. All Rights Reserved.

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