Court Rules That DOL Definition of “Workweek” Under the FMLA is Incorrect

Clifford Geiger
Clifford Geiger

The United States Court of Appeals for the Ninth Circuit has ruled that the Department of Labor incorrectly defined “workweek” for purposes of time off under the Family and Medical Leave Act (FMLA).  You can read the details, as well as the dissenting opinion, at Scalia v. State of Alaska, 9th Cir., No. 19-35824, 1/15/21

The FMLA grants eligible employees a “total of 12 workweeks of leave during any 12-month period” to attend to qualifying family and medical needs.  29 U.S.C. § 2612(a)(1).  “Workweek” is not defined in the statute, however.

The Labor Department took the position that an employee on a rotational schedule of one week on, followed by one week off, may stay away from their job for 24 weeks when taking 12 weeks of continuous leave under the FMLA.  The Labor Department contended that the employer miscalculated FMLA leave entitlements for rotational employees by counting the “on” and “off” weeks towards the 12-week entitlement when the leave was taken on a continuous basis. Intermittent leave calculations were not at issue. 

A federal district court agreed with the Labor Department’s interpretation, and it entered summary judgment against the employer.  The district court found that “workweek” refers to time the employee is actually required to be at work, and because rotational employees are not required to be at work on their off weeks, these weeks cannot be counted against an employee’s FMLA leave entitlement.  The result for these employees is 24 weeks, instead of 12 weeks, away from work.

On appeal, a divided panel of the U.S Court of Appeals for the Ninth Circuit found the Labor Department and district court were incorrect.  The panel held that when a rotational employee takes continuous leave, both on and off weeks count as “workweeks of leave” under the FMLA.  Accordingly, the employer could require rotational employees who took 12 workweeks of continuous leave to return to week 12 weeks later. 

Given that “workweek” is not defined in the FMLA, the Ninth Circuit looked to the Fair Labor Standards Act (FLSA), 29 U.S.C. 201 et seq.  The FLSA generally prohibits employers from employing any covered employee “for a workweek longer than forty hours” unless overtime is paid.  In regulations promulgated in the 1960s, the Labor Department defined “workweek” as a fixed period of seven consecutive days, regardless of the schedule worked or hours assigned.  Therefore, according to the appeals court, the concept of “workweek” does not revolve around an individual employee’s own work schedule, and Congress intended to adopt this well-established definition when it enacted the FMLA.  This result, the appeals court further noted, is consistent with general principles of statutory construction and the FMLA’s legislative history. 


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