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Employers may count both ‘on and off weeks’ against a rotational schedule employee’s FMLA leave entitlement

By Kathleen Kapusta, J.D.

The court found that the term “workweek” in FMLA Section 2612(a)(1) has the same meaning it carries under the FLSA: It is a fixed, pre-established period of seven consecutive days in which the employer is operating.

Addressing for purposes of the FMLA what the term “workweek” means as applied to employees who work a rotational schedule of seven days on followed by seven days off, the Ninth Circuit, concluding that it has the same meaning it carries under the FLSA, determined that it “is a fixed, pre-established period of seven consecutive days in which the employer is operating.” Under that reading of the term, said the court, when an employee working a one-week-on, one-week-off schedule takes continuous leave, “an employer may count the on and off weeks against the employee’s FMLA leave entitlement. Accordingly, the court reversed the district court’s grant of summary judgment to the Secretary of Labor in his lawsuit alleging Alaska miscalculated the amount of FMLA leave certain rotational employees were entitled to take. Judge Christen dissented (Scalia v. State of Alaska, January 15, 2021, Watford, P.).

Rotational schedules. Alaska’s transportation department operates the Alaska Marine Highway System (AMHS), which provides passenger ferry service in parts of the state. While some AMHS employees work traditional Monday-to-Friday schedules, others work rotational week-on/week-off schedules. Both types of employees generally work the same number of hours per year and are generally paid the same amount.

Controversy. The Secretary alleged that Alaska violated the FMLA as to rotational employees who take continuous leave. In the state’s view, a rotational employee working a “one week on, one week off” schedule who takes 12 workweeks of continuous leave must return to work 12 weeks later because both the “on” and “off” weeks count against the employee’s FMLA leave entitlement. The Secretary, however, argued that the employee should return to work 24 weeks later, because a rotational employee’s off weeks cannot be counted as “workweeks of leave” under FMLA Section 2612(a)(1).

Lower court proceedings. Agreeing with the Secretary, the district court held that the term “workweek” refers to “time that an employee is actually required to be at work.” Thus, since rotational employees are not required to be at work during their off weeks, the court concluded that those weeks could not be counted against an employee’s FMLA leave entitlement.

FLSA’s workweek. Noting that the issue on appeal was the meaning of the term “workweek,” the Ninth Circuit pointed out that Congress did not define that term when it enacted the FMLA. The FLSA, however, also uses the term, and in regulations first promulgated in the 1960s, the Department of Labor construed the term “workweek” to mean, essentially, a fixed period of seven consecutive days. Further, said the court, that regulation makes clear that a workweek does not revolve around an individual employee’s own work schedule but rather is simply a week-long period, designated in advance by the employer, during which the employer is in operation.

Borrowed established meaning. Finding next that Congress intended to adopt this definition when it granted employees “a total of 12 workweeks of leave” under the FMLA, the court pointed out that the term “acquired an established meaning under the FLSA decades before Congress enacted the FMLA, and Congress deliberately chose to use that term as opposed to the unmodified term ‘week.’” Both statutes, the court observed, provide employees certain minimum workplace protections and in both, Congress used the term workweek for the same purpose—”to provide a fixed, pre-established period of time against which an employee’s entitlement to statutory benefits can be measured, while at the same time affording employers flexibility to establish that period on a basis other than a Monday-through-Sunday calendar week.” Thus the court found it reasonable to infer that Congress intended to borrow the term’s established meaning under the FLSA when it enacted the FMLA.

Title II’s “administrative workweeks.” In support of this view, the court noted that Title II of the FMLA, which deals with civil service employees, states that “an employee shall be entitled to a total of 12 administrative workweeks of leave during any 12-month period.” Calling the use of the term “administrative workweeks” significant, the court pointed out that civil service regulations had long defined the term as “a period of 7 consecutive calendar days designated in advance by the head of an agency,” which is “essentially equivalent” to the regulatory definition of the term “workweek” under the FLSA. “Like the regulatory definition of ‘workweek,’ the definition of ‘administrative workweek’ does not focus on an individual employee’s own work schedule,” the court explained, noting that “Congress’s use of the term ‘administrative workweek’ confirms that it did not conceive of ‘workweeks of leave’ for civil service employees as consisting exclusively of weeks in which an employee was scheduled to work as the Secretary urges.”

Disparity. Further, said the court, the “Secretary’s reading of the statute would also create a seemingly unjustified disparity in treatment between traditional and rotational employees.” For example, the court noted, a traditional employee who takes FMLA after the birth of a child must return to work 12 weeks later, while a rotational employee would not need to return for 24 weeks. “The Secretary does not explain why Congress would have privileged rotational employees over traditional employees merely because over a two-week period a rotational employee’s 80 hours of work are allocated over seven days, while a traditional employee’s 80 hours of work are allocated over ten.”

Concluding that the term workweek in Section 2612(a)(1) has the same meaning it carries under the FLSA—a fixed, pre-established period of seven consecutive days in which the employer is operating—the court found that when a rotational employee takes continuous leave, both his on and off weeks count as “workweeks of leave” under Section 2612(a)(1). Accordingly, said the court, Alaska can “insist that rotational employees who take 12 workweeks of continuous leave return to work 12 weeks later.”

Deference. Turning to whether it was required to defer to the Secretary’s interpretation of the statute, the court found no deference was owed under Chevron because the DOL did not promulgate regulations that defined workweek or that adopted special rules governing rotational employees. The court also rejected the Secretary’s assertion his interpretation was entitled to deference under Skidmore. Under Skidmore, the court observed, the weight to be accorded the Secretary’s interpretation “depend[s] upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” “We have given careful consideration to each of these factors, but none of them persuades us that the Secretary’s reading of the statute is the better one,” the court stated.

Accordingly, the court reversed the grant of summary judgment to the Secretary and remanded with instructions to enter summary judgment in favor of Alaska.

Dissent. In a lengthy dissent, Judge Christen argued that “If ‘workweek’ is considered without regard to the context provided by the FMLA, one could conclude the term is ambiguous because this seven-day unit of time could be viewed as the time the employer is operational or as the time the employee is scheduled to work. But we do not interpret statutory terms in a vacuum; and here, the FMLA’s provisions governing intermittent leave require that ‘workweek’ means an employee’s regular weekly work schedule, not the time an employer is open for business.”

Further, Judge Christen asserted, “our precedent requires that we give deference to the Secretary’s long-standing definition: an FMLA workweek is a week during which an employee is scheduled to work.” As to the definition the majority borrowed from the FLSA, that, the dissent contended, “lends no support to the majority’s conclusion because the FLSA’s forty-hour threshold triggering overtime wages is absolutely calculated by reference to the employee’s weekly work schedule.”