No. 00-6029 

In the Supreme Court of the United States 

TRACY RAGSDALE, ET AL., PETITIONERS 

v. 

WOLVERINE WORLDWIDE, INC. 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE EIGHTH CIRCUIT 

BRIEF FOR THE UNITED STATES AS 
AMICUS CURIAE SUPPORTING PETITIONERS 

HOWARD M. RADZELY 

Acting Solicitor of Labor 

ALLEN H. FELDMAN 

Associate Solicitor 

NATHANIEL I. SPILLER 

Deputy Associate Solicitor 

ELLEN L. BEARD 

Attorney 
Department of Labor 
Washington, D.C. 20210 

THEODORE B. OLSON 
Solicitor General 

Counsel of Record 

EDWIN S. KNEEDLER 

Deputy Solicitor General 

MALCOLM L. STEWART 

Assistant to the Solicitor 

General 

Department of Justice 
Washington, D.C. 20530-0001 
(202) 514–2217 

QUESTION PRESENTED 

The Family and Medical Leave Act of 1993 (FMLA 
or Act) requires covered employers to provide eligible 
employees with “a total of 12 workweeks of leave 
during any 12-month period” for specified reasons, 29 
U.S.C. 2612(a)(1), including leave needed “[b]ecause of a 
serious health condition that makes the employee 
unable to perform the functions of the position of such 
employee,” 29 U.S.C. 2612(a)(1)(D). The FMLA directs 
the Secretary of Labor to “prescribe such regulations 
as are necessary to carry out” the Act’s substantive 
provisions. 29 U.S.C. 2654. The question presented is 
as follows: 

Whether the Secretary has acted permissibly in 
providing by regulation that (with certain exceptions) 
employer-provided leave does not count against the 
Act’s 12-week entitlement until the employer notifies 
the employee of its designation as FMLA leave. 

(I) 

TABLE OF CONTENTS 

Page 

Interest of the United States ...................................................... 
1 

Statement ........................................................................................ 1 

Summary of argument .................................................................. 

9 

Argument: 

The Secretary’s regulations concerning an em- 
ployer’s designation of leave constitute a reasonable 
implementation of the Family and Medical Leave 
Act ............................................................................................. 12 

I. The regulation at issue in this case is 
reasonably related to the purposes of the 
Act ................................................................................ 14 

II. The court of appeals erred in holding that 
29 C.F.R. 825.700(a) is inconsistent with 
Congress’s decision to mandate only 12 weeks 
of FMLA leave ........................................................... 
21 

Conclusion ....................................................................................... 30 

TABLE OF AUTHORITIES 

Cases: 

Bachelder v. America W. Airlines, Inc., 

No. 99-17458, 2001 WL 883701 (9th Cir. Aug. 8, 

2001) ......................................................................................... 26 

Batterton v. Francis, 432 U.S. 416 (1977) ......................... 

13 

Chevron U.S.A. Inc. v. Natural Res. Def. Council, 

Inc., 467 U.S. 837 (1984) .............................................. 

13, 21, 27 

Clifton v. FEC, 114 F.3d 1309 (1st Cir. 1997), 

cert denied, 522 U.S. 1108 (1998) ........................................ 

22 

Cox v. AutoZone, Inc., 990 F. Supp. 1369 (M.D. 

Ala. 1998), aff ’d sub nom. McGregor v. AutoZone, 

Inc., 180 F.3d 1305 (11th Cir. 1999) ................................... 

7 

Gemsco, Inc. v. Walling, 324 U.S. 244 (1945) ................... 

23 

Longstreth v. Copple, 189 F.R.D. 401 (N.D. Iowa 

1999) ......................................................................................... 8 

Massachusetts v. Morash, 490 U.S. 107 (1989) ................ 28 

(III) 

IV 

Cases—Continued: Page 

McGregor v. AutoZone, Inc., 180 F.3d 1305 (11th 

Cir. 1999) ................................................................................. 

7 

Mourning v. Family Publ’ns Serv., Inc., 411 U.S. 

356 (1973) ............................................................ 

12, 14, 21, 22, 23 

NLRB v. Fleetwood Trailer Co., 389 U.S. 375 

(1967) ........................................................................................ 26 

Northcross v. Board of Educ., 412 U.S. 427 (1973) .......... 

26 

Plant v. Morton Int’l, Inc., 212 F.3d 929 (6th Cir. 

2000) ......................................................................................... 23, 27 

Rennie v. Garrett, 896 F.2d 1057 (7th Cir. 1990) ............. 

24 

Texas Rural Legal Aid, Inc. v. Legal Servs. Corp., 

940 F.2d 685 (D.C. Cir. 1991) ............................................... 

23 

United States v. Locke, 471 U.S. 84 (1985) ........................ 

25 

United States v. Mead Corp., 121 S. Ct. 2164 

(2001) ........................................................................................ 13 

United States v. O’Hagan, 521 U.S. 642 (1997) .......... 

13, 22, 23 

Statutes and regulations: 

Administrative Procedure Act, 5 U.S.C. 701 et seq.: 
5 U.S.C. 706(2)(A) .................................................................. 

13 
5 U.S.C. 706(2)(C) .................................................................. 
13 

Family and Medical Leave Act of 1993, 29 U.S.C. 
2601 et seq. ............................................................................... 
1 

29 U.S.C. 2601(a)(3) .......................................................... 
14 

29 U.S.C. 2601(a)(4) .......................................................... 
14 

29 U.S.C. 2601(b)(2) .......................................................... 
15 

29 U.S.C. 2611-2619 .......................................................... 
11, 25 

29 U.S.C. 2611(2)(A)(i) ..................................................... 
2 

29 U.S.C. 2611(4)(A)(i) ..................................................... 
2, 20 

29 U.S.C. 2612(a)(1)(A)-(C) ............................................. 
2, 16 

29 U.S.C. 2612(a)(1)(C) ..................................................... 
2 

29 U.S.C. 2612(a)(1)(D) .................................................... 
2, 16 

29 U.S.C. 2612(c) ............................................................... 
2 

29 U.S.C. 2612(d)(2) .......................................................... 
28 

29 U.S.C. 2612(d)(2)(B) .................................................... 
2, 28 

29 U.S.C. 2612(e) ............................................................... 
2-3 

29 U.S.C. 2612(e)(1) .......................................................... 8 

V 

Statutes and regulations—Continued: 
Page 

29 U.S.C. 2613 .................................................................... 
3 

29 U.S.C. 2614(a) ............................................................... 
3 

29 U.S.C. 2614(a)(1) .......................................................... 
15, 19 

29 U.S.C. 2614(b)(1)(A)-(B) ............................................. 
8 

29 U.S.C. 2614(c) ............................................................... 
3 

29 U.S.C. 2614(c)(1) ........................................................... 
15, 19 

29 U.S.C. 2615(a)(1) ...................................................... 
3, 11, 25 

29 U.S.C. 2617 (1994 & Supp. V 1999) ........................... 
3 

29 U.S.C. 2617(a)(1)(B) ..................................................... 
16 

29 U.S.C. 2617(a)(3) .......................................................... 
16 

29 U.S.C. 2617(b) ............................................................... 
16 

29 U.S.C. 2619 .................................................................... 
8 

29 U.S.C. 2619(a) ............................................................... 
3 

29 U.S.C. 2651-2653 .......................................................... 
2, 28 

29 U.S.C. 2654 ............................................. 
1, 3, 11, 13, 22, 27 

National Labor Relations Act, § 8(a)(1), 29 U.S.C. 
158(a)(1) ........................................................................... 
11, 25, 26 

Truth in Lending Act, 15 U.S.C. 1601 et seq. ....................... 
22 

15 U.S.C. 78n(e) ......................................................................... 
22 

29 C.F.R.: 

Pt. 825: 

Section 825.115 .................................................................. 

17 

Section 825.207(d)(1) ......................................................... 
3 

Section 825.208 .................................................................. 
3, 5 

Section 825.208(a) ................................................... 
5, 13, 17, 19 

Section 825.208(b) ..................................................... 
13, 17, 19 

Section 825.208(b)(1) ......................................................... 
5 

Section 825.208(b)(2) ......................................................... 
5 

Section 825.208(c) .............................................................. 
13, 20 

Section 825.220(b) ............................................................. 
25 

Sections 825.300-825.312 .................................................. 
3 

Section 825.300(a) .............................................................. 
3, 17 

Section 825.301 .................................................................. 
18 

Section 825.301(a) .............................................................. 
4 

Section 825.301(b) ............................................................. 
4, 17 

Section 825.301(b)(1)(i) .......................................... 
4, 13, 17, 19 

Section 825.301(b)(1)(iii) .................................................. 
4 

Section 825.301(b)(1)(iv) .................................................. 
4 

Section 825.301(b)(1)(vii) ................................................. 4 

VI 

Regulations—Continued: Page 

Section 825.301(b)(2) ......................................................... 
4 

Section 825.301(c) .............................................................. 
4, 17 

Section 825.302 .................................................................. 
3 

Section 825.302(c)............................................................... 18 

Section 825.303(b) ............................................................. 

18 

Section 825.304 .................................................................. 
3 

Sections 825.305-825.308 .................................................. 
4 

Section 825.310 .................................................................. 
4 

Sections 825.311-825.312 .................................................. 
4 

Section 825.700(a) .......................................................... 
passim 

App. C ................................................................................. 
3, 17 

App. D ................................................................................. 
4, 17 

Pt. 1614: 

Section 1614.105(a)(1) ....................................................... 

24 

Section 1614.106(b) ........................................................... 
24 

Miscellaneous: 

D. Cantor et al. & U.S. Dep’t of Labor, Balancing 
the Needs of Families and Employers: Family and 
Medical Leave Surveys (Jan. 2001) .................................... 

18 
60 Fed. Reg. (1995): 

p. 2207 ...................................................................................... 

21 

p. 2220 ...................................................................................... 
17 

H.R. Rep. No. 8, 103d Cong., 1st Sess. Pt. 1 
(1993) ........................................................................................ 
15, 16 

S. Rep. No. 3, 103d Cong., 1st Sess. (1993) ........................... 
15 

Society for Human Resource Management, 2000 

FMLA Survey (Jan. 2001) .................................................... 18 

In the Supreme Court of the United States 

No. 00-6029 

TRACY RAGSDALE, ET AL., PETITIONERS 

v. 

WOLVERINE WORLDWIDE, INC. 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE EIGHTH CIRCUIT 

BRIEF FOR THE UNITED STATES AS 
AMICUS CURIAE SUPPORTING PETITIONERS 

INTEREST OF THE UNITED STATES 

The Family and Medical Leave Act of 1993, 29 U.S.C. 
2601 et seq., authorizes the Secretary of Labor to 
“prescribe such regulations as are necessary to carry 
out” the provisions of the Act. 29 U.S.C. 2654. The 
court of appeals held that a regulation adopted by the 
Secretary pursuant to that statutory grant of authority 
was invalid as applied in this case. The United States 
therefore has an interest in the question presented. At 
the invitation of the Court, the United States filed a 
brief as amicus curiae at the petition stage of this case. 

STATEMENT 

1. a. The Family and Medical Leave Act (FMLA) 
provides that 

(1) 

2 

an eligible employee shall be entitled to a total of 
12 workweeks of leave during any 12-month period 

* * * 

(D) Because of a serious health condition that 
makes the employee unable to perform the func- 
tions of the position of such employee. 

29 U.S.C. 2612(a)(1)(D). The Act confers an equivalent 
right on any eligible employee who wishes to take leave 
in order to care for a newborn or newly adopted child, 
or for a close relative with a serious health condition. 
29 U.S.C. 2612(a)(1)(A)-(C). The term “eligible em- 
ployee” is defined to mean an employee who, inter alia, 
“has been employed * * * for at least 12 months by 
the employer with respect to whom leave is requested.” 
29 U.S.C. 2611(2)(A)(i). The FMLA applies to em- 
ployers “who employ[] 50 or more employees for each 
working day during each of 20 or more calendar 
workweeks in the current or preceding calendar year.” 
29 U.S.C. 2611(4)(A)(i). 

An employer may comply with its obligations under 
the FMLA by providing unpaid leave. 29 U.S.C. 
2612(c). The Act provides, however, that “[a]n eligible 
employee may elect, or an employer may require the 
employee, to substitute any of the accrued paid vaca- 
tion leave, personal leave, or medical or sick leave of 
the employee for leave provided under [29 U.S.C. 
2612(a)(1)(C) or (D)] for any part of the 12-week period 
of such leave under such subsection.” 29 U.S.C. 
2612(d)(2)(B). The Act expressly preserves and encour- 
ages more generous leave policies, both those volun- 
tarily adopted by employers and those mandated by 
state law. 29 U.S.C. 2651-2653. 

The FMLA requires employees to give their em- 
ployers advance notice of foreseeable leave, 29 U.S.C. 

3 

2612(e), and it allows employers to require medical 
certification when leave is sought for a serious health 
condition, 29 U.S.C. 2613. With certain exceptions, the 
Act entitles employees to job restoration in the same or 
an equivalent position upon their return from leave, and 
it requires employers to maintain employees’ group 
health benefits during the leave period. 29 U.S.C. 
2614(a) and (c). It is “unlawful for any employer 
to interfere with, restrain, or deny the exercise” or 
attempted exercise of any right provided under the 
Act. 29 U.S.C. 2615(a)(1). Either the affected employee 
or the Secretary of Labor may bring suit to enforce the 
Act. 29 U.S.C. 2617 (1994 & Supp. V 1999). Employers 
are required to post a notice of FMLA rights in a form 
approved by the Secretary. 29 U.S.C. 2619(a); see 29 
C.F.R. 825.300(a). The Secretary has prepared a pro- 
totype notice for that purpose, which is reprinted in 
Appendix C to Part 825 of 29 C.F.R., and which is 
also available from local offices of the Wage and Hour 
Division of the Department of Labor (DOL). 

b. The FMLA directs the Secretary of Labor to 
“prescribe such regulations as are necessary to carry 
out” the provisions of the Act. 29 U.S.C. 2654. Pur- 
suant to that authority, the Secretary has promulgated 
detailed regulations concerning the process by which 
employers and employees are to communicate with 
each other regarding FMLA leave. See 29 C.F.R. 
825.207(d)(1), 825.208, 825.300-825.312, 825.700(a). Those 
regulations impose notice requirements on both em- 
ployees and employers. For example, the regulations 
specify the circumstances under which an employee 
must give 30-days’ advance notice of foreseeable leave, 
29 C.F.R. 825.302, and the recourse available to em- 
ployers if such notice is not provided, 29 C.F.R. 825.304. 
Certain regulations detail the process by which an 

4 

employer may require an employee to provide medical 
certification of a serious health condition, 29 C.F.R. 
825.305-825.308, and of the employee’s fitness to return 
to work, 29 C.F.R. 825.310; and others spell out the 
permissible consequences of an employee’s failure to 
provide such certifications, 29 C.F.R. 825.311-825.312. 
See also 29 C.F.R. 825.301(a) (requiring that written 
employer guidance to employees, such as employee 
handbooks, must include information regarding the 
FMLA). 

The regulations further require the employer to com- 
municate to the employee specified information regard- 
ing the employee’s rights and responsibilities under the 
Act at the time he requests leave for an FMLA-covered 
reason. 29 C.F.R. 825.301(b). The written notice must 
state “that the leave will be counted against the em- 
ployee’s annual FMLA leave entitlement.” 29 C.F.R. 
825.301(b)(1)(i). The notice must also inform the em- 
ployee of, inter alia, “the employee’s right to substitute 
paid leave and whether the employer will require the 
substitution of paid leave, and the conditions related to 
any substitution,” 29 C.F.R. 825.301(b)(1)(iii); “any 
requirement for the employee to make any premium 
payments to maintain health benefits and the arrange- 
ments for making such payments,” 29 C.F.R. 825.301(b) 
(1)(iv); and “the employee’s right to restoration to the 
same or an equivalent job upon return from leave,” 
29 C.F.R. 825.301(b)(1)(vii). The required written 
notice “must be provided to the employee no less often 
than the first time in each six-month period that an em- 
ployee gives notice of the need for FMLA leave.” 
29 C.F.R. 825.301(c). A prototype notice is contained in 
Appendix D to Part 825 of 29 C.F.R., and is also avail- 
able from local offices of the DOL’s Wage and Hour 
Division. See 29 C.F.R. 825.301(b)(2). 

5 

Other regulatory provisions require employers to 
notify employees that particular periods of leave are 
covered by the FMLA, and specify the consequences 
that follow when such notice is not given. The regula- 
tions provide that “[i]n all circumstances, it is the 
employer’s responsibility to designate leave, paid or 
unpaid, as FMLA-qualifying, and to give notice of the 
designation to the employee as provided” in Section 
825.208 of the regulations. 29 C.F.R. 825.208(a). “The 
employer’s notice to the employee that the leave has 
been designated as FMLA leave may be orally or in 
writing,” but if it is oral, it must be confirmed in writing 
by the following payday. 29 C.F.R. 825.208(b)(2). 
Under Section 825.208, “[o]nce the employer has ac- 
quired knowledge that the leave is being taken for an 
FMLA required reason, the employer must promptly 
(within two business days absent extenuating circum- 
stances) notify the employee that the paid leave is 
designated and will be counted as FMLA leave.” 29 
C.F.R. 825.208(b)(1).1 Another regulation, which ap- 
plies to both paid and unpaid leave, states that “[i]f an 
employee takes paid or unpaid leave and the employer 
does not designate the leave as FMLA leave, the leave 
taken does not count against an employee’s FMLA 
entitlement.” 29 C.F.R. 825.700(a). 

2. a. On March 17, 1995, petitioner Tracy Ragsdale 
began her employment with respondent Wolverine 
Worldwide, Inc. Pet. App. A2. Petitioner was diag- 
nosed with cancer in February 1996, and on February 

1 Although paragraph (b)(1) of Section 825.208 refers by its 
terms to designation of “paid leave,” the first sentence of Section 
825.208(a) makes clear that the notice obligations “provided in this 
section” apply to designations of “paid or unpaid” leave. 29 C.F.R. 
825.208(a) and (b)(1). 

6 

21, 1996, she requested and received medical leave. 
Ibid. Respondent’s leave policy allowed employees 
with at least six months of service to take leave for up 
to seven months, on the condition that the employee 
submit a request for extension of leave every 30 days. 
Ibid. Although the opinions below do not directly 
address the point, it appears that petitioner’s leave was 
unpaid. See U.S. Br. Pet. Stage 5-6. In addition to peti- 
tioner’s initial request for leave, respondent granted six 
30-day extensions of leave, the last coming on August 
15, 1996. Ibid. During that period, respondent did not 
notify petitioner of her eligibility for leave under the 
FMLA, and it did not designate petitioner’s leave as 
FMLA leave. Ibid. Respondent states in this Court 
that it was aware of the Act but believed that peti- 
tioner was not eligible for FMLA leave because she had 
not worked for respondent a full 12 months at the time 
her leave initially commenced. Br. in Opp. 2 n.1. 

On September 20, 1996, petitioner was terminated 
because she had exhausted her seven months of leave 
under the company policy and was unable to return to 
work. Pet. App. A2. On September 26, 1996, petitioner 
requested additional FMLA leave or, in the alternative, 
permission to return to work on a reduced hour 
schedule. Id. at A3. Respondent denied both requests. 
Ibid. Petitioner’s physician released her to work in 
December 1996, and she has been employed in full-time 
positions elsewhere since December 31, 1996. Ibid. The 
parties appear to have litigated this case on the as- 
sumption that petitioner could have returned to work 
at the expiration of seven months of company leave plus 
12 weeks of FMLA leave, had respondent permitted 
those periods of leave to run sequentially. 

b. Petitioner brought suit against respondent, as- 
serting claims under, inter alia, the FMLA. Pet. App. 

7 

B2. The district court granted respondent’s motion for 
summary judgment on the FMLA claim. Id. at B4-B9. 
The court held that petitioner was eligible for FMLA 
leave as of March 18, 1996, the date on which she re- 
quested her first extension of leave, even though she 
was not eligible on February 21, 1996, when she first 
took leave, because she had not yet completed 12 
months of employment with respondent. Id. at B4-B6. 
The court further held, however, that petitioner was 
not entitled to 12 weeks of FMLA leave in addition to 
the seven months of leave she had already received. 
The court acknowledged that under the DOL regula- 
tions, respondent’s failure to designate petitioner’s 
leave as FMLA leave would preclude respondent from 
counting that leave against the statutory 12-week 
entitlement. Id. at B6-B7. The court concluded, how- 
ever, that the DOL regulations were invalid because 
they “added requirements which not only go beyond 
those of the statute, but which are inconsistent with the 
stated purpose of the statute and which would grant 
entitlements which were not given by Congress.” Id. at 
B8 (quoting Cox v. AutoZone, Inc., 990 F. Supp. 1369, 
1381 (M.D. Ala. 1998), aff ’d sub nom. McGregor v. 
AutoZone, Inc., 180 F.3d 1305 (11th Cir. 1999)). 

c. The court of appeals affirmed. Pet. App. A1-A12. 
The court concluded that “the DOL’s regulations impro- 
perly ‘convert[] the statute’s minimum of federally- 
mandated unpaid leave into an entitlement to an addi- 
tional 12 weeks of leave unless the employer specifically 
and prospectively notifies the employee that she is 
using her FMLA leave.’ ” Id. at A7 (quoting McGregor 

v. AutoZone, Inc., 180 F.3d at 1308). Because the 
“terms of the statute contemplate only that the em- 
ployer will be required to provide a ‘total’ of twelve 
weeks of unpaid leave,” the court stated, “twelve weeks 

8 

of leave is both the minimum the employer must 
provide and the maximum that the statute requires.” 
Ibid. 

The court of appeals also believed that notice re- 
quirements imposed by other provisions of the FMLA 
“strongly support the view that where Congress de- 
sired explicit notice provisions with significant conse- 
quences for their violation, it provided for them in the 
text of the statute.” Pet. App. A9 (citing 29 U.S.C. 
2612(e)(1), 2614(b)(1)(A)-(B), 2619). The court relied as 
well on portions of the legislative history stating that 
the FMLA was designed to establish a minimum stan- 
dard for leave, and indicating that the 12-week leave 
period was a compromise between the family needs of 
workers and the business needs of employers. Id. at 
A9-A10. The court concluded that “[t]he DOL regula- 
tions must be struck down” because they “create rights 
which the statute clearly does not confer.” Id. at A10. 

At the same time, the court of appeals recognized 
that situations could arise “in which an employer’s 
failure to give notice may function to interfere with or 
to deny an employee’s substantive FMLA rights.” Pet. 
App. A10. As an example, the court pointed out that 
“notice could be necessary where the employee claims 
that the sole reason she exceeded her FMLA leave was 
due to the employer’s failure to notify her that her 
leave was designated as FMLA leave and if she had 
been so notified, she would have returned to work at 
the end of the twelve weeks.” Id. at A10-A11 (citing 
Longstreth v. Copple, 189 F.R.D. 401 (N.D. Iowa 1999)). 
In the instant case, however, where respondent’s leave 
program was “far more generous than the baseline 
established by the FMLA,” and petitioner’s “medical 
condition rendered her unable to work for substantially 
longer than the FMLA twelve-week period,” the court 

9 

of appeals concluded that applying the notice regula- 
tions would “directly contradict the statute by in- 
creasing the amount of leave that an employer must 
provide.” Id. at A11. On that basis, the court held that 
29 C.F.R. 825.700(a) is “invalid insofar as it purports to 
require an employer to provide more than twelve 
weeks of leave time.” Pet. App. A11. 

SUMMARY OF ARGUMENT 

Pursuant to a broad statutory grant of rulemaking 
authority, the Secretary of Labor has promulgated 
extensive regulations implementing the FMLA. Inter 
alia, those regulations (1) require the employer to 
determine and notify the employee in advance that a 
particular period of leave will be treated as FMLA 
leave, and (2) provide (with certain exceptions) that the 
employee’s absence may not be counted against the 12- 
week FMLA entitlement until the required notice has 
been provided. Those regulations constitute a reason- 
able and lawful exercise of the agency’s rulemaking 
authority. 

I. In addition to protecting a covered worker’s in- 
terests in continued employment after the expiration of 
the leave period, the FMLA enables the worker, at the 
outset of leave, to plan his medical treatment or care- 
giving activities with a degree of confidence that an 
employer’s unilateral leave policy could not provide. 
The Secretary reasonably determined that full achieve- 
ment of that statutory purpose requires that the em- 
ployee be made aware at the outset of the statutory 
leave period of his rights and responsibilities under the 
Act. The regulations at issue in this case complement 
other regulatory provisions intended to provide 
employees covered by the FMLA with adequate infor- 
mation concerning the Act’s terms. 

10 

Under the regulations, an employer is required to 
post on its premises a general notice that provides a 
succinct overview of the FMLA’s requirements and 
prohibitions. The employer is also required to provide a 
more comprehensive and specific notice at the time that 
an employee requests leave for an FMLA-covered rea- 
son. The requirement that an employer must deter- 
mine and inform the employee in advance that a 
particular leave period will be treated as FMLA leave 
is thus part of a larger regulatory effort to make the 
FMLA’s protections meaningful by increasing em- 
ployee understanding of the Act’s provisions. That 
requirement imposes no onerous burden on the em- 
ployer, which must in any event make its own internal 
determination whether particular leave periods will be 
treated as FMLA leave. 

The Secretary’s regulations also specify the conse- 
quence of non-compliance with the underlying designa- 
tion and notice requirements. The regulations provide 
that particular periods of leave will not be counted 
against an employee’s annual 12-week entitlement 
under the FMLA if the employer fails to give timely 
notice that the leave will be so treated. That approach 
reflects the Secretary’s reasonable determination that 
the predictability and ease of administration of a cate- 
gorical rule make it preferable to a regime in which an 
individual’s entitlement to relief under the Act would 
turn on a potentially difficult retrospective inquiry into 
what steps the employee might have taken had he 
received timely notice. The Secretary’s decision to 
adopt a prophylactic rule, rather than to mandate a 
case-specific determination whether an employee was 
prejudiced by his failure to receive the required notice, 
is a permissible exercise of administrative discretion. 

11 

II. The Secretary’s approach is not inconsistent with 
Congress’s decision to mandate only 12 weeks of leave 
under the FMLA. The FMLA authorizes the Secretary 
to “prescribe such regulations as are necessary to carry 
out” the Act. 29 U.S.C. 2654. Under this Court’s prece- 
dents, the Secretary, acting pursuant to that grant of 
rulemaking authority, may impose requirements that 
go beyond those contained in the Act itself. 

Contrary to the court of appeals’ assertion, nothing in 
the Secretary’s regulations requires any employer to 
allow any employee to take more than 12 weeks of leave 
for an FMLA-covered reason. An employer may 
always (so far as the FMLA and the DOL’s implement- 
ing regulations are concerned) limit an employee’s leave 
to the 12 weeks specified by the Act, and may dismiss 
an employee who is unable to return to work after 12 
weeks of leave, so long as the employer provides timely 
notice that a particular period will be counted as FMLA 
leave. 

The FMLA states that “[i]t shall be unlawful for any 
employer to interfere with, restrain, or deny the ex- 
ercise of or the attempt to exercise, any right provided 
under this subchapter [29 U.S.C. 2611-2619].” 29 U.S.C. 
2615(a)(1). That language closely resembles Section 
8(a)(1) of the National Labor Relations Act, 29 U.S.C. 
158(a)(1), which has been broadly construed to prohibit 
employer conduct that deters employees’ participation 
in protected activities. The Secretary has reasonably 
concluded that an employee’s informed exercise of 
rights under the FMLA requires prior notice that 
particular periods of leave will be counted against the 
worker’s 12-week statutory entitlement. An employer 
that fails to provide the requisite notice that particular 
periods will be counted as FMLA leave, and then dis- 
misses a worker based on his health-related inability to 

12 

perform the functions of the job, may properly be said 
to “interfere with” or “restrain” the employee’s exer- 
cise of his rights under the Act, even if the employee 
receives 12 weeks of leave. That is particularly so in 
light of the fact that the Act does not specify how 
employers and employees must communicate about the 
relationship between FMLA and other leave. 

The court of appeals itself stated that notice regard- 
ing the commencement of FMLA leave might be neces- 
sary in cases where the employee could show prejudice 
from the employer’s failure to inform him that a 
particular period of leave would be counted against the 
12-week FMLA entitlement. The court’s decision thus 
ultimately rests on the fact that the Secretary has 
chosen to promulgate a categorical rule. Given the 
breadth of the Secretary’s rulemaking authority, 
however, and the evident desirability of avoiding diffi- 
cult retrospective inquiries into the effect of lack of 
notice in individual cases, the Secretary acted reason- 
ably by adopting the rule in question. 

ARGUMENT 

THE SECRETARY’S REGULATIONS CONCERNING 
AN EMPLOYER’S DESIGNATION OF LEAVE CON- 
STITUTE A REASONABLE IMPLEMENTATION OF 
THE FAMILY AND MEDICAL LEAVE ACT 

“Where the empowering provision of a statute states 
simply that the agency may ‘make . . . such rules 

* * * as may be necessary to carry out the provisions 
of this Act,’ * * * the validity of a regulation pro- 
mulgated thereunder will be sustained so long as it is 
‘reasonably related to the purposes of the enabling 
legislation.’ ” Mourning v. Family Publ’ns Serv., Inc., 
411 U.S. 356, 369 (1973) (citation and footnote omitted). 
The FMLA vests the Secretary of Labor with broad 

13 

authority to “prescribe such regulations as are neces- 
sary to carry out” the Act. 29 U.S.C. 2654. In light of 
Congress’s express conferral of legislative rulemaking 
authority, a court must uphold the validity of the Secre- 
tary’s FMLA regulations unless they are “arbitrary, 
capricious, or manifestly contrary to the statute.” 
United States v. O’Hagan, 521 U.S. 642, 673 (1997) 
(quoting Chevron U.S.A. Inc. v. Natural Res. Def. 
Council, Inc., 467 U.S. 837, 844 (1984)). Accord United 
States v. Mead Corp., 121 S. Ct. 2164, 2171 (2001) 
(“When Congress has ‘explicitly left a gap for an agency 
to fill, there is an express delegation of authority to the 
agency * * *,’ and any ensuing regulation is binding in 
the courts unless procedurally defective, arbitrary or 
capricious in substance, or manifestly contrary to the 
statute.”) (citations omitted); cf. Batterton v. Francis, 
432 U.S. 416, 426 (1977) (a legislative rule “can be set 
aside only if the Secretary exceeded his statutory 
authority or if the regulation is ‘arbitrary, capricious, 
an abuse of discretion, or otherwise not in accordance 
with law’ ”) (citing Administrative Procedure Act (APA), 
5 U.S.C. 706(2)(A) and (C)). 

This case implicates two distinct (though related) 
aspects of the Secretary’s regulatory scheme. First, 
the regulations require the employer to notify the em- 
ployee, at the time leave is requested for an FMLA- 
covered reason, that the leave will count against the 
worker’s 12-week entitlement under the Act. See 29 
C.F.R. 825.208(a) and (b), 825.301(b)(1)(i). Second, the 
regulations specify the consequence of the employer’s 
failure to comply with the notice requirement: namely, 
that until the required notice is provided, the em- 
ployee’s absence may not be counted against the 12- 
week FMLA entitlement. See 29 C.F.R. 825.208(c) 
(paid leave), 825.700(a) (paid and unpaid leave). The 

14 

court of appeals did not specifically address the legality 
of the underlying notice requirement. The court held, 
however, that Section 825.700(a) is “invalid insofar as it 
purports to require an employer to provide more than 
twelve weeks of leave time.” Pet. App. A11. 

The court of appeals erred in holding 29 C.F.R. 
825.700(a) to be invalid as applied in this case. First, 
the pertinent regulatory provisions are “reasonably 
related to the purposes of the enabling legislation,” 
Mourning, 411 U.S. at 369, because they assist employ- 
ees covered by the FMLA in making informed choices 
concerning the exercise of their statutory rights, while 
imposing no substantial burden on covered employers. 
Second, the regulations are not contrary to the terms of 
the FMLA because the Secretary is authorized to pre- 
scribe requirements that go beyond those imposed by 
the Act itself; because the regulations do not require 
any employer to provide any employee with more than 
12 weeks of leave; and because no provision of the 
FMLA defines the consequences of an employer’s 
failure to provide notice that particular periods of leave 
will count against the Act’s 12-week entitlement. 

I. THE REGULATION AT ISSUE IN THIS CASE IS 

REASONABLY RELATED TO THE PURPOSES OF 

THE ACT 

A. The FMLA reflects Congress’s determination 
that “there is inadequate job security for employees 
who have serious health conditions that prevent them 
from working for temporary periods.” 29 U.S.C. 
2601(a)(4); see also 29 U.S.C. 2601(a)(3) (“the lack of 
employment policies to accommodate working parents 
can force individuals to choose between job security and 
parenting”). To address those problems, the Act “en- 
title[s] employees to take reasonable leave for medical 

15 

reasons, for the birth or adoption of a child, and for the 
care of a child, spouse, or parent who has a serious 
health condition.” 29 U.S.C. 2601(b)(2). 

The protections of the FMLA may have substantial 
value even in the typical workplace where the employer 
chooses, as a matter of policy, to allow employees to be 
absent from work in order to perform parental or other 
care-giving functions, or because the employee’s medi- 
cal condition renders him unable to perform the func- 
tions of the job. The 12-week leave entitlement 
established by the Act, for example, may be greater 
than the amount of leave that the employer is otherwise 
willing to provide. The FMLA also requires the 
employer to maintain the employee’s health benefits in 
effect during the pendency of FMLA leave “at the level 
and under the conditions coverage would have been 
provided if the employee had continued in employment 
continuously for the duration of such leave.” 29 U.S.C. 
2614(c)(1). Perhaps most significantly, the Act affords 
the worker a legally enforceable right, not dependent 
upon the grace of the employer, to restoration in the 
same or an equivalent position upon his return from 
FMLA leave. 29 U.S.C. 2614(a)(1).2 

2 The legislative history reflects Congress’s awareness and con- 
cern that employees may take leave for family or medical reasons, 
based on an apparent understanding with the employer that their 
jobs will be protected, only to be dismissed from employment after 
acting in reliance on that understanding. See S. Rep. No. 3, 103d 
Cong., 1st Sess. 8-10 (1993); H.R. Rep. No. 8, 103d Cong., 1st Sess. 
Pt. 1, at 24 (1993). Those examples reinforce the common-sense 
proposition that an employer’s stated policy of permitting workers 
to take leave for specified reasons is not the practical equivalent of 
a legally enforceable guarantee of continued employment at the 
conclusion of the leave period. Even where the employer has made 
a contractual or similar binding commitment that the use of leave 
for specified reasons will not result in loss of employment, the 

16 

The guarantee of continued employment provided by 
the FMLA enables the worker, at the outset of leave, 
to plan his medical treatment or care-giving activities 
with a degree of confidence that an employer’s uni- 
lateral policy could not provide. See H.R. Rep. No. 8, 
103d Cong., 1st Sess. Pt. 1, at 41 (1993) (“employees 
would be greatly deterred from taking leave without 
the assurance that upon return from leave, they will be 
reinstated to a genuinely equivalent position”). Thus, 
the value of the FMLA’s reinstatement requirement is 
not simply that it protects workers from job loss when 
family or medical circumstances make absence from 
work absolutely unavoidable. That requirement also 
affords employees a degree of flexibility and assurance 
in planning medical treatment and care-giving activities 
before leave commences and in balancing employment 
obligations against competing responsibilities.3 

FMLA’s remedial mechanisms—which include equitable relief and 
attorney’s fees in private suits, see 29 U.S.C. 2617(a)(1)(B) and (3), 
as well as enforcement proceedings brought by the Secretary, see 
29 U.S.C. 2617(b)—may be more efficacious than those available 
under other sources of law. 

3 The FMLA’s potential to facilitate employee planning, and 
the consequent need for accurate information concerning the Act’s 
provisions, may be greatest when leave is taken to care for a new- 
born or newly adopted child, or for a close relative with a serious 
health condition. See 29 U.S.C. 2612(a)(1)(A)-(C). An employee 
who requests leave for one of those purposes may have a greater 
practical ability to control the timing and duration of his absence 
from work than will an employee who requests leave “[b]ecause of 
a serious health condition that makes the employee unable to per- 
form the functions of the position of such employee.” 29 U.S.C. 
2612(a)(1)(D). Even an employee who requests leave for a “serious 
health condition,” however, may be able to make effective use of 
information concerning his rights and responsibilities under the 
Act. For example, “[a]n employee who must be absent from work 

17 

B. The regulations implicated by this case— 
29 C.F.R. 825.208(a) and (b), 825.301(b)(1)(i), and 
825.700(a)—further that statutory purpose and comple- 
ment other regulatory provisions intended to provide 
employees covered by the FMLA with adequate 
information concerning their rights and responsibilities 
under the Act. “Every employer covered by the FMLA 
is required to post and keep posted on its premises 

* * * a notice explaining the Act’s provisions and pro- 
viding information concerning the procedures for 
filing complaints of violations of the Act.” 29 C.F.R. 
825.300(a); see p. 3, supra. The prototype notice pre- 
pared by the DOL is cast in general terms and provides 
a succinct overview of the FMLA’s requirements and 
prohibitions. See 29 C.F.R. Pt. 825, App. C. 

Under the regulations, an employer is required to 
provide an additional notice—notice that is both more 
comprehensive and more tailored to the circumstances 
of the individual worker—at the time that an employee 
requests leave for an FMLA-covered purpose. See 29 
C.F.R. 825.301(b) and (c); 29 C.F.R. Pt. 825, App. D. 
That regulatory mandate reflects the Secretary’s deter- 
mination that the FMLA’s purposes cannot adequately 
be realized if workers are unaware of their rights and 
responsibilities under the Act. See 60 Fed. Reg. 2220 
(1995) (“The intent of this notice requirement is to 
insure employees receive the information necessary to 
enable them to take FMLA leave.”). Recent empirical 
studies indicate that most employees know too little 

to receive medical treatment for a serious health condition is 
considered to be unable to perform the essential functions of the 
position during the absence for treatment.” 29 C.F.R. 825.115. A 
worker may be able to adjust his treatment schedule, in light of 
information concerning the provisions of the FMLA, in order to 
protect his rights under the Act. 

18 

about the FMLA to be able to take advantage of its 
protections on their own. Surveys of randomly-selected 
employees in FMLA-covered establishments in 1995 
and 2000 showed that only 59% of those employees had 
even heard of the Act, a percentage that did not 
increase between 1995 and 2000. D. Cantor et al. & 
U.S. Dep’t of Labor, Balancing the Needs of Families 
and Employers: Family and Medical Leave Surveys 3- 
10 (Jan. 2001). Similarly, a recent survey of human re- 
sources professionals suggested that only 29% of em- 
ployees and 31% of line managers and supervisors 
understand the FMLA. Society for Human Resource 
Management, 2000 FMLA Survey (Jan. 2001). 

The Secretary’s regulations sensibly require that 
employees who have actually requested leave for an 
FMLA-covered reason—and who are therefore in 
immediate need of information regarding the Act’s 
provisions and its applicability to their individual 
circumstances—must receive more detailed and specific 
notice concerning the Act than the employer is required 
to post for the work force generally. Because em- 
ployers typically provide some form of parental, sick, 
and disability leave, an employee’s request for leave for 
an FMLA-covered reason does not by itself evidence 
familiarity with the terms of the Act and implementing 
regulations.4 An understanding of the Act’s provisions 

4 The DOL regulations make clear that an employee will be 
treated as having requested FMLA leave (thereby triggering the 
notice provisions of 29 C.F.R. 825.301) if he requests leave for an 
FMLA-covered reason. 29 C.F.R. 825.302(c), 825.303(b). “The em- 
ployee need not expressly assert rights under the FMLA or even 
mention the FMLA.” 29 C.F.R. 825.302(c) and 825.303(b). Thus, 
the request for leave will not necessarily reflect the employee’s 
awareness that the FMLA exists, let alone a sufficient under- 
standing of the worker’s rights and responsibilities under the Act. 

19 

therefore will substantially assist the worker, who may 
have rights under the Act that go beyond the terms of 
the employer’s own leave policy. 

As a practical matter, an employee’s full under- 
standing of his rights and responsibilities under the 
FMLA requires an awareness that a particular period 
of leave will be counted against his 12-week annual 
entitlement under the Act. Notice that the employer 
regards a particular period as FMLA leave may also 
assist the worker in monitoring the employer’s 
compliance with the substantive provisions of the Act 
(e.g., the requirement that the employer maintain 
health benefits in effect during the pendency of the 
leave period, see 29 U.S.C. 2614(c)(1)). The designation 
and notice requirement contained in 29 C.F.R. 
825.208(a) and (b) and 825.301(b)(1)(i)—i.e., the require- 
ment that an employer must determine and inform the 
employee in advance that a particular leave period will 
be treated as FMLA leave—is therefore properly 
understood as part of a larger regulatory framework 
designed to make the FMLA’s protections meaningful 
by increasing employee understanding of the Act’s 
provisions and avoiding the confusion that can lead to 
loss of substantive rights. 

The leave designation requirement imposes no oner- 
ous burden on the employer. In order to ensure com- 
pliance with the Act, the employer must in any event 
make its own internal determination whether particular 
leave periods will be treated as FMLA leave, with 
concomitant employee rights to job restoration 
and continuation of health benefits. See 29 U.S.C. 
2614(a)(1) and (c)(1). Sections 825.208(a) and (b) and 
825.301(b)(1)(i) simply direct the employer to make its 
FMLA leave determination at the outset of the leave 
period (to the extent that is feasible) and to communi- 

20 

cate that determination promptly to the affected 
employee. 

The FMLA applies only to relatively large employers 
—i.e., those “who employ[] 50 or more employees for 
each working day during each of 20 or more calendar 
workweeks in the current or preceding calendar year.” 
29 U.S.C. 2611(4)(A)(i). Such employers can be ex- 
pected to deal on a regular basis with requests for leave 
for FMLA-covered reasons. Placing the principal 
responsibility for disseminating relevant information on 
the employer, rather than leaving to each employee the 
task of informing himself about the Act’s provisions, is 
especially reasonable with respect to that category of 
employers. 

C. The Secretary’s regulations also specify the con- 
sequence of an employer’s non-compliance with the 
designation requirement. The regulations provide, as a 
categorical matter, that particular periods of leave will 
not be counted against an employee’s annual 12-week 
entitlement under the FMLA if the employer fails to 
give timely notice that the leave will be so treated. See 
29 C.F.R. 825.208(c) (paid leave), 825.700(a) (paid and 
unpaid leave). That prophylactic rule will sometimes 
place the employee in a better position than if the em- 
ployer had provided the required notice in a timely 
fashion. In the instant case, for example, the effect of 
29 C.F.R. 825.700(a) is to afford petitioner a viable 
cause of action under the FMLA, even though she 
would have been physically unable to return to work 
within 12 weeks of her initial eligibility for FMLA leave 
if respondent had promptly informed her at that time 
that her leave would be counted against the FMLA 
limit. 

The Secretary reasonably determined, however, that 
the predictability and ease of administration of a cate- 

21 

gorical rule make it preferable to a regime in which an 
individual’s entitlement to relief under the Act would 
turn on a potentially difficult retrospective inquiry into 
what steps the employee might have taken had he 
received timely notice. As the agency explained when 
it promulgated the final rule, the pertinent regulatory 
provisions were “intended to resolve the question of 
FMLA designation as early as possible in the leave 
request process, to eliminate protracted ‘after the fact’ 
disputes.” 60 Fed. Reg. at 2207. The Secretary’s ap- 
proach reflects a permissible exercise of administrative 
discretion. Compare Mourning, 411 U.S. at 371-372 
(“where reasonable minds may differ as to which of 
several remedial measures should be chosen, courts 
should defer to the informed experience and judgment 
of the agency to whom Congress delegated appropriate 
authority”). 

II. THE COURT OF APPEALS ERRED IN HOLDING 

THAT 29 C.F.R. 825.700(a) IS INCONSISTENT WITH 

CONGRESS’S DECISION TO MANDATE ONLY 12 

WEEKS OF FMLA LEAVE 

The court of appeals concluded that 29 C.F.R. 
825.700(a) is “contrary to clear congressional intent,” 
Pet. App. A10 (quoting Chevron, 467 U.S. at 843 n.9), 
“insofar as it purports to require an employer to pro- 
vide more than twelve weeks of leave time,” id. at A11. 
The court observed that “[t]he FMLA was intended 
only to set a minimum standard of leave for employers 
to provide to employees. Under the FMLA, twelve 
weeks of leave is both the minimum the employer must 
provide and the maximum that the statute requires.” 
Id. at A7. The court of appeals found Section 825.700(a) 
to be inconsistent with the balance struck by Congress 

22 

between the interests of employees and employers. Id. 
at A10. That analysis is misconceived. 

A. The FMLA authorizes the Secretary to “prescribe 
such regulations as are necessary to carry out” the Act. 
29 U.S.C. 2654. An agency vested with such broad rule- 
making authority may “require[] some individuals to 
submit to regulation who do not participate in the 
conduct the legislation was intended to deter or con- 
trol,” in order to provide “a reasonable margin to insure 
effective enforcement.” Mourning, 411 U.S. at 374 
(citation omitted). Accord O’Hagan, 521 U.S. at 672-673 
(“[a] prophylactic measure, because its mission is to 
prevent, typically encompasses more than the core 
activity prohibited”); id. at 673 (pursuant to statutory 
grant of rulemaking authority, “the [Securities and 
Exchange] Commission may prohibit acts not them- 
selves fraudulent * * * if the prohibition is ‘reason- 
ably designed to prevent . . . acts and practices [that] 
are fraudulent’ ”) (quoting 15 U.S.C. 78n(e)); id. at 674 
(noting with apparent approval that the Commission 
defended the challenged rule “as a means necessary and 
proper to assure the efficacy of [statutory] protec- 
tions”); Clifton v. FEC, 114 F.3d 1309, 1312 (1st Cir. 
1997) (“Agencies often are allowed through rulemaking 
to regulate beyond the express substantive directives 
of the statute, so long as the statute is not contra- 
dicted.”) (citing Mourning), cert. denied, 522 U.S. 1108 
(1998). 

In Mourning, the Court addressed the contention 
that a rule promulgated by the Federal Reserve Board 
was “‘inconsistent’ with portions of the enabling statute 
[the Truth in Lending Act, 15 U.S.C. 1601 et seq.] * * * 
because the statute specifically mentions disclosure 
only in regard to transactions in which a finance charge 
is in fact imposed, although the rule requires disclosure 

23 

in some cases in which no such charge exists.” 411 U.S. 
at 372 (footnote omitted). The creditor in that case 
“argue[d] that, in requiring disclosure as to some trans- 
actions, Congress intended to preclude the Board from 
imposing similar requirements as to any other trans- 
actions.” Ibid. The Court squarely rejected that con- 
tention, explaining that “[t]o accept [the creditor’s] 
argument would undermine the flexibility sought in 
vesting broad rulemaking authority in an administra- 
tive agency.” Ibid.; see id. at 373; see also Texas Rural 
Legal Aid Inc. v. Legal Servs. Corp., 940 F.2d 685, 694 
(D.C. Cir. 1991) (“a congressional decision to prohibit 
certain activities does not imply an intent to disable the 
relevant administrative body from taking similar action 
with respect to activities that pose a similar danger”) 
(citing Mourning); cf. Gemsco, Inc. v. Walling, 324 U.S. 
244, 262 (1945) (“Congress by stating expressly its pri- 
mary ends does not deny resort to the means necessary 
to achieve them.”). Similarly here, so long as the Secre- 
tary has employed “a means necessary and proper 
to assure the efficacy of [statutory] protections,” 
O’Hagan, 521 U.S. at 674, the regulations are valid, 
notwithstanding the fact that they impose obligations 
beyond those contained in the FMLA itself. See Plant 

v. Morton Int’l, Inc., 212 F.3d 929, 935-936 (6th Cir. 
2000).5 
B. The court of appeals held that 29 C.F.R. 
825.700(a) is “invalid insofar as it purports to require an 
employer to provide more than twelve weeks of leave 
time.” Pet. App. A11. Nothing in the DOL regulations, 

5 The Court’s analysis in Mourning also refutes the court of 
appeals’ suggestion (see Pet. App. A9) that the inclusion in the 
FMLA of express notice requirements implicitly divests the Secre- 
tary of the authority to require notice in other circumstances. 

24 

however, requires any employer to allow any employee 
to take more than 12 weeks of leave for an FMLA- 
covered purpose. Nor do the regulations make such a 
requirement a necessary or even likely consequence of 
an employer’s decision to adopt its own leave program. 
To limit an employee’s leave to the 12 weeks specified 
by the Act, an employer need only provide timely 
notice that a particular period will be counted as FMLA 
leave. The DOL rules therefore do not prohibit an 
employer from dismissing an employee who is unable to 
return to work after 12 weeks of leave; they simply 
establish reasonable preconditions for the employer’s 
exercise of that prerogative. Absent any reason to 
believe that compliance with the notice requirement 
will be difficult or onerous—and the court of appeals 
offered none—the court erred in concluding that the 
Secretary’s regulatory approach would subvert the 
balance struck by Congress.6 

6 An agency authorized to adjudicate claims of statutory vio- 
lations, and to devise a suitable administrative process for resolv- 
ing such disputes, may require that claims be presented to the 
agency within a specified time after the alleged violation occurs. 
See, e.g., 29 C.F.R. 1614.105(a)(1) and 1614.106(b) (Equal Employ- 
ment Opportunity Commission regulations establishing time limits 
within which federal employees must contact an agency EEO 
counselor and file a formal complaint in order to preserve claims 
under Title VII); Rennie v. Garrett, 896 F.2d 1057, 1059 (7th Cir. 
1990) (discussing predecessor regulations governing same sub- 
jects). The agency’s adoption of a reasonable limitations period 
does not negate the claimant’s statutory entitlement to relief, even 
though a person who fails to pursue his claim within the designated 
period may be denied a remedy notwithstanding the existence of a 
statutory violation. Similarly here, the legal impediment to re- 
spondent’s dismissal of petitioner in September 1996 is the direct 
result of respondent’s own failure to preserve its rights in the 
manner specified by the regulations. 

25 

Nor is there merit to the court of appeals’ suggestion 
(Pet. App. A9, A11) that Section 825.700(a) is invalid 
because it imposes “a disproportionate penalty” for a 
“technical violation of the designation regulations.” Re- 
latively minor violations of timing and notice require- 
ments often entail severe consequences, as where a 
plaintiff with a meritorious claim files suit one day after 
the statute of limitations expires. See United States v. 
Locke, 471 U.S. 84, 101 (1985) (“Filing deadlines, like 
statutes of limitations, necessarily operate harshly and 
arbitrarily with respect to individuals who fall just on 
the other side of them, but if the concept of a filing 
deadline is to have any content, the deadline must be 
enforced.”). If enforcement of a timing or notice re- 
quirement promotes the effective administration of the 
relevant statute in cases where the rule is obeyed, and 
if compliance is neither onerous nor difficult, such 
requirements are reasonable. The same principle ap- 
plies here. In any event, the consequence of a failure to 
afford the required notice is neither “disproportionate” 
nor a “penalty.” The employer suffers no permanent 
disadvantage; the result is simply to postpone the 
running of the 12-week period of leave mandated by the 
FMLA until the employer gives the notice required to 
commence that period. 

C. The FMLA states that “[i]t shall be unlawful for 
any employer to interfere with, restrain, or deny the 
exercise of or the attempt to exercise, any right pro- 
vided under this subchapter [29 U.S.C. 2611-2619].” 29 
U.S.C. 2615(a)(1); see 29 C.F.R. 825.220(b) (“Any vio- 
lations of the Act or of these regulations constitute 
interfering with, restraining, or denying the exercise of 
rights provided by the Act.”). The language of 29 
U.S.C. 2615(a)(1) “largely mimics that of ” Section 
8(a)(1) of the National Labor Relations Act (NLRA), 29 

26 

U.S.C. 158(a)(1), which “provid[es] that it is an unfair 
labor practice for an employer ‘to interfere with, re- 
strain, or coerce employees in the exercise of the rights 
guaranteed’ by § 7 of the NLRA.” Bachelder v. 
America W. Airlines, Inc., No. 99-17458, 2001 WL 
883701, at *4 (9th Cir. Aug. 8, 2001). “Because the 
FMLA’s language so closely follows that of the NLRA, 
the courts’ interpretation of § 8(a)(1) of the NLRA 
helps to clarify the meaning of the statutory terms 
‘interference’ and ‘restraint.’ ” 

Ibid. (citing Northcross 
v. Board of Educ., 412 U.S. 427, 428 (1973) (per curiam)). 
“As a general matter, * * * the established under- 
standing [of the NLRA] at the time the FMLA was 
enacted was that employer actions that deter em- 
ployees’ participation in protected activities constitute 
‘interference’ or ‘restraint’ with the employees’ exercise 
of their rights.” Bachelder, 2001 WL 883701, at *5. 
This Court has also long recognized that under the 
NLRA, the determination whether particular employer 
conduct amounts to unlawful “interfere[nce]” with or 
“restrain[t]” of employees’ exercise of statutory rights 
is principally entrusted to the National Labor Relations 
Board. See NLRB v. Fleetwood Trailer Co., 389 U.S. 
375, 378 (1967) (stating, with specific reference to 
Section 8(a)(1) of the NLRA, that “[i]t is the primary 
responsibility of the Board and not of the courts to 
strike the proper balance between the asserted busi- 
ness justifications and the invasion of employee rights 
in light of the Act and its policy.”) (citation and internal 
quotation marks omitted). 

In prohibiting employers from “interfer[ing] with” or 
“restrain[ing]” the exercise of FMLA rights, and in en- 
trusting to the Secretary of Labor the task of admini- 
stering the Act, Congress must be presumed to have 
intended that the Secretary would possess broad 

27 

authority to identify those forms of employer conduct 
that will likely hinder or deter employees’ exercise of 
their rights under the FMLA. The Secretary has rea- 
sonably concluded that an employee’s informed exercise 
of rights under the Act requires prior notice that 
particular periods of leave will be counted against the 
worker’s 12-week statutory entitlement. The effect of 
the regulations pertinent to this case is that a covered 
worker who requests leave for a “serious health con- 
dition” may not be terminated from employment, based 
on his health-related inability to perform the functions 
of the job, unless and until the employer has (a) in- 
formed him that the leave will count against his 12- 
week FMLA entitlement and (b) thereafter allowed 
him to take 12 weeks of leave. An employer that dis- 
misses such a worker without satisfying those prerequi- 
sites may properly be said to “interfere with” or 
“restrain” the employee’s exercise of his rights under 
the Act, even though the employee receives 12 weeks of 
leave. 

D. Although the leave entitlement conferred by the 
FMLA is limited to 12 weeks per year, the Act does not 
specify how employers and employees are to com- 
municate about the relationship between FMLA and 
other leave, or spell out the consequences when the re- 
quisite communications are not made. See Plant, 212 
F.3d at 935 (“The FMLA itself is silent as to the notice 
an employer must give to an employee before designat- 
ing his paid leave as FMLA leave.”). Such details could 
be described as filling in a “gap” in the Act within the 
meaning of Chevron, 467 U.S. at 843, or simply as 
matters for agency implementation within the normal 
scope of a broad delegation of legislative rulemaking 
authority to carry the Act into effect, see 29 U.S.C. 
2654. Under either characterization, the absence of any 

28 

FMLA provision directly addressing the specific sub- 
ject matter of the regulations at issue in this case 
further undermines the court of appeals’ conclusion that 
those rules are contrary to the Act.7 

E. The court of appeals itself “stressed that the court 
[wa]s not holding that any DOL regulations requiring 
employers to designate leave as FMLA leave would be 
invalid.” Pet. App. A10. The court observed, by way of 
example, that “notice could be necessary where the 
employee claims that the sole reason she exceeded her 
FMLA leave was due to the employer’s failure to notify 
her that her leave was designated as FMLA leave and 
if she had been so notified, she would have returned to 
work at the end of the twelve weeks.” Id. at A10-A11. 
Even in that situation, however, the employer would 
effectively be required, as a result of its non-compliance 
with the regulatory notice requirement, to allow more 

7 Other provisions of the Act that recognize the obligation of 
employers to coordinate FMLA and non-FMLA leave reinforce the 
reasonableness of the DOL’s approach. See, e.g., Massachusetts v. 
Morash, 490 U.S. 107, 115 (1989) (“[I]n expounding a statute, we 
[are] not . . . guided by a single sentence or member of a sen- 
tence, but look to the provisions of the whole law, and to its object 
and policy.”) (citation omitted). In particular, the leave substitu- 
tion provisions in 29 U.S.C. 2612(d)(2) require an employer to take 
some positive action if it wants an employee’s paid leave and 
FMLA leave to run concurrently. See, e.g., 29 U.S.C. 2612(d)(2)(B) 
(“An eligible employee may elect, or an employer may require the 
employee, to substitute any of the accrued paid vacation leave, per- 
sonal leave, or medical or sick leave of the employee” for FMLA 
leave provided for a serious health condition.) (emphasis added). 
The Act also expressly recognizes that many employers provide 
leave independently of the FMLA, and provides some guidance on 
the proper relationship between FMLA leave and leave voluntar- 
ily provided by employers or mandated by state law. 29 U.S.C. 
2651-2653. 

29 

than 12 weeks of leave for an FMLA-covered reason. If 
the court of appeals were correct that 29 C.F.R. 
825.700(a) is “invalid insofar as it purports to require an 
employer to provide more than twelve weeks of leave 
time,” Pet. App. A11, the hypothetical rules that the 
court regarded with apparent approval would be 
subject to the same objection. 

Thus, despite the court of appeals’ statement that the 
existing DOL regulations “directly contradict the 
statute by increasing the amount of leave that an em- 
ployer must provide,” Pet. App. A11, the court’s de- 
cision ultimately rests on the fact that the Secretary 
has chosen to promulgate a categorical rule, rather than 
to mandate a case-specific inquiry into whether a parti- 
cular employee suffered actual prejudice as a result of 
the employer’s failure to provide timely notice. But 
while the Secretary might have adopted a regime of the 
sort the court of appeals preferred, she was not re- 
quired to do so. Given the breadth of the Secretary’s 
rulemaking authority under the Act, and the evident 
desirability of avoiding difficult retrospective inquiries 
into the presence or absence of prejudice in individual 
cases, the Secretary acted within her sphere of lawful 
discretion by adopting the rule in question. 

30 

CONCLUSION 

The judgment of the court of appeals should be 
reversed. 

Respectfully submitted. 

HOWARD M. RADZELY 

Acting Solicitor of Labor 

ALLEN H. FELDMAN 

Associate Solicitor 

NATHANIEL I. SPILLER 

Deputy Associate Solicitor 

ELLEN L. BEARD 

Attorney 
Department of Labor 

THEODORE B. OLSON 
Solicitor General 

EDWIN S. KNEEDLER 

Deputy Solicitor General 

MALCOLM L. STEWART 

Assistant to the Solicitor 

General 

SEPTEMBER 2001