No. 00-6029 

In the Supreme Court of the United States 

TRACY RAGSDALE, ET AL., PETITIONERS 

v. 

WOLVERINE WORLDWIDE, INC. 

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

BRIEF FOR THE UNITED STATES 
AS AMICUS CURIAE 

JUDITH E. KRAMER 

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 
BARBARA D. UNDERWOOD 

Acting 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 employ- 
ees 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 condi- 
tion 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 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-pro- 
vided 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 

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

Discussion ........................................................................................ 9 

Conclusion ....................................................................................... 20 

TABLE OF AUTHORITIES 

Cases: 

Cehrs v. Northeast Ohio Alzheimers Research 

Ctr., 15 F.3d 775 (6th Cir. 1998) ......................................... 

19 

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

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

10 

Cline v. Wal-Mart Stores, Inc., 144 F.3d 294 (4th 

Cir. 1998) ................................................................................. 

17 

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 

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

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

Manuel v. Westlake Polymers Corp., 66 F.3d 758 

(5th Cir. 1995) ......................................................................... 

17 

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

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

9, 13, 15 

Plant v. Morton Int’l, Inc., 212 F.3d 929 

(6th Cir. 2000) ............................................. 

9, 16, 17, 18, 19, 20 

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

10 

Statute and regulations: 

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

et seq.: 

29 U.S.C. 2611-2619 .......................................................... 

14 

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

2, 15 

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

1 

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

2 

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

1, 2 

29 U.S.C. 2612(c) ............................................................. 2, 19 

(III) 

IV 

Statute and regulations—Continued: 
Page 

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

19 

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

2, 7 

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

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

29 U.S.C. 2613 ........................................................................ 
2 

29 U.S.C. 2614(a) .................................................................... 
2 

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

29 U.S.C. 2614(c) .................................................................... 
2 

29 U.S.C. 2615(a)(1) ............................................................. 
2, 14 

29 U.S.C. 2617 (1994 & Supp. V 1999) ............................... 
2 

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

29 U.S.C. 2619(a) .................................................................... 
2 

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

29 U.S.C. 2654 ...................................................................... 
3, 10 

29 C.F.R. Pt. 825: 

Section 825.110(b) .................................................................. 

16 

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

Section 825.208 ..................................................................... 
3, 13 

Section 825.208(a) ............................................................ 
3, 7, 12 

Section 825.208(b) .................................................................. 
3 

Section 825.208(b)(1) ............................................................. 
3 

Section 825.208(b)(2) ............................................................. 
3 

Section 825.208(c) ............................................................ 
passim 

Section 825.208(d) .................................................................. 
13 

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

Section 825.300(a) .................................................................. 
2, 10 

Section 825.301 ....................................................................... 
11 

Section 825.301(b) ................................................................ 
4, 10 

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

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

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

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

Section 825.301(b)(2) ............................................................. 
5 

Section 825.301(c) ................................................................ 
4, 10 

Section 825.302(c) .................................................................. 
11 

Section 825.303(b) .................................................................. 
11 

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

App. C .................................................................................... 
2, 10 

App. D .................................................................................... 5, 10 

V 

Miscellaneous: Page 

D. Cantor, et al. & U.S. Dep’t of Labor, Balancing the 

Needs of Families and Employers: Family and 
Medical Leave Surveys (Jan. 2001) .................................... 
11 

60 Fed. Reg. (1995): 

p. 2180 ...................................................................................... 

13 

p. 2207 ...................................................................................... 
13 

pp. 2207-2208 .......................................................................... 
13 

Society for Human Resource Management, 
2000 FMLA Survey (Jan. 2001) .......................................... 11 

In the Supreme Court of the United States 

No. 00-6029 
TRACY RAGSDALE, ET AL., PETITIONERS 

v. 
WOLVERINE WORLDWIDE, INC. 

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

BRIEF FOR THE UNITED STATES 
AS AMICUS CURIAE 

This brief is submitted in response to the Court’s order 
inviting the Solicitor General to express the views of the 
United States. 

STATEMENT 

1. a. The Family and Medical Leave Act of 1993 (FMLA 
or Act), 29 U.S.C. 2601 et seq., provides that 

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 functions 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 employee” is defined to 
mean an employee who, inter alia, “has been employed 

(1) 

2 

* * * for at least 12 months by the employer with respect to 
whom leave is requested.” 29 U.S.C. 2611(2)(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 substi- 
tute any of the accrued paid vacation 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 encourages 
more generous leave policies, both those voluntarily adopted 
by employers and those mandated by state law. 29 U.S.C. 
2651-2653. 

The FMLA requires employees to give their employers 
advance notice of foreseeable leave, 29 U.S.C. 2612(e), and 
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 restora- 
tion in the same or an equivalent position upon their return 
from leave, and requires employers to maintain employees’ 
group health benefits while on leave. 29 U.S.C. 2614(a) and 
(c). It is “unlawful for any employer to interfere with, re- 
strain, or deny the exercise” or attempted exercise of any 
FMLA right. 29 U.S.C. 2615(a)(1). Either the affected em- 
ployee or the Secretary of Labor is authorized to 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 prototype 
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). 

3 

b. The FMLA directs the Secretary of Labor to “pre- 
scribe such regulations as are necessary to carry out” the 
Act’s substantive provisions. 29 U.S.C. 2654. Pursuant to 
that authority, the DOL has promulgated detailed regula- 
tions concerning the process by which employers and em- 
ployees 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 provide that “[i]n all 
circumstances, it is the employer’s responsibility to desig- 
nate 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 Sec- 
tion 825.208, “[o]nce the employer has acquired knowledge 
that the leave is being taken for an FMLA required reason, 
the employer must promptly (within two business days 
absent extenuating circumstances) notify the employee that 
the paid leave is designated and will be counted as FMLA 
leave.” 29 C.F.R. 825.208(b)(1). 

The regulations contain a specific provision addressing the 
substitution of paid leave for FMLA leave. Under that pro- 
vision, “[i]f the employer requires paid leave to be substi- 
tuted for unpaid leave, or that paid leave taken under an 
existing leave plan be counted as FMLA leave, this decision 
must be made by the employer within two business days of 
the time the employee gives notice of the need for leave,” or 
at a later date if the employer initially lacks knowledge of 
the information necessary to make the designation. 
29 C.F.R. 825.208(c). That provision then states that “[i]f the 
employer has the requisite knowledge to make a determina- 
tion that the paid leave is for an FMLA reason * * * and 

4 

fails to designate the leave as FMLA leave,” and to notify 
the employee as required by 29 C.F.R. 825.208(b), 

the employer may not designate leave as FMLA leave 
retroactively, and may designate only prospectively as of 
the date of notification to the employee of the designa- 
tion. In such circumstances, the employee is subject to 
the full protections of the Act, but none of the absence 
preceding the notice to the employee of the designation 
may be counted against the employee’s 12-week FMLA 
leave entitlement. 

29 C.F.R. 825.208(c). Another regulation, which applies to 
both paid and unpaid leave, provides that “[i]f an employee 
takes paid or unpaid leave and the employer does not desig- 
nate the leave as FMLA leave, the leave taken does not 
count against an employee’s FMLA entitlement.” 29 C.F.R. 
825.700(a). 

The DOL regulations also require the employer to 
communicate specified information regarding the employee’s 
rights and responsibilities under the FMLA to the employee 
at the time he requests leave for reasons that trigger the 
FMLA. 29 C.F.R. 825.301(b). The written notice must state 
“that the leave will be counted against the employee’s annual 
FMLA leave entitlement.” 29 C.F.R. 825.301(b)(1)(i). The 
notice must also inform the employee 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 
arrangements 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 

5 

first time in each six-month period that an employee 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 available from local offices of DOL’s Wage 
and Hour Division. See 29 C.F.R. 825.301(b)(2). 

2. a. On March 17, 1995, petitioner Tracy Ragsdale began 
her employment with respondent Wolverine Worldwide, Inc. 
Pet. App. A2. Petitioner was diagnosed with cancer in 
February 1996, and on February 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. In addition to petitioner’s initial request for 
leave, respondent granted six 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, nor did it designate petitioner’s 
leave as FMLA leave. Ibid. Respondent states in this 
Court that it was aware of the Act but believed that 
petitioner 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. 

Neither of the opinions below explicitly states whether 
petitioner’s leave was paid or unpaid. Respondent asserted 
below (see Resp. C.A. Br. 4) that the leave was unpaid, how- 
ever, and the opinions of the court of appeals and district 
court implicitly suggest that petitioner did not continue to 
receive her regular pay during the leave period. Thus, the 
court of appeals stated that during the leave, “[respondent] 
maintained [petitioner’s] health insurance benefits, and even 
exceeded the requirements of the FMLA by paying [peti- 
tioner’s] insurance premiums for six months. Moreover, 
[respondent] held [petitioner’s] position open for her during 
the entire thirty weeks of leave.” Pet. App. A11; see id. at 

6 

B7. The absence of any reference to payment of wages 
indicates the unpaid status of petitioner’s leave. 

On September 20, 1996, petitioner was terminated be- 
cause she had exhausted her seven months of company leave 
and was unable to return to work. Pet. App. A2. On Sep- 
tember 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 since December 31, 1996. Ibid. The parties appear 
to have litigated the case on the assumption 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 sequen- 
tially. 

b. Petitioner brought suit against respondent, asserting 
claims under, inter alia, the FMLA. Pet. App. B2. The dis- 
trict court granted respondent’s motion for summary judg- 
ment 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 requested 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 regulations, 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, 
however, 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 

7 

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 improperly 
‘convert[] the statute’s minimum of federally-mandated 
unpaid leave into an entitlement to an additional 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 
1305, 1308 (11th Cir. 1999)). Because the “terms of the 
statute contemplate only that the employer will be required 
to provide a ‘total’ of twelve weeks of unpaid leave,” the 
court stated, “twelve weeks of leave is both the minimum the 
employer must provide and the maximum that the statute 
requires.” Ibid. The court of appeals recognized that 
29 C.F.R. 825.208(a) requires an employer to designate 
leave, paid or unpaid, as FMLA qualifying and to notify the 
employee of that designation, and that two separate regula- 
tions—29 C.F.R. 825.208(c) (dealing with paid leave) and 
825.700(a) (dealing with paid and unpaid leave)—provide 
that the failure to designate leave as FMLA leave will result 
in the employee’s retaining his 12-week FMLA entitlement. 
Pet. App. A5-A6. The court also recognized that under 
29 U.S.C. 2612(d)(2)(B), which specifically addresses paid 
leave, “[a]n eligible employee may elect, or an employer may 
require the employee, to substitute” certain types of accrued 
paid leave for “any part of the 12-week” FMLA leave. Pet. 
App. A8. The court concluded, however, that Section 
2612(d)(2)(B) does not support the Secretary’s regulatory 
approach across the board. The court stated that “the 
Secretary of Labor has apparently seized upon the ‘employer 
may require’ provision in § 2612(d)(2)(B) to justify the 

8 

imposition of a disproportionate penalty in all cases where 
employers fail to designate leave as FMLA leave.” Id. at A9. 

The court of appeals stated that notice requirements 
imposed by other provisions of the FMLA “strongly support 
the view that where Congress desired explicit notice provi- 
sions with significant consequences 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 also relied on portions of the legislative history stating 
that the FMLA was designed to establish a minimum labor 
standard 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 regulations must be 
struck down” because they “create rights which the statute 
clearly does not confer.” Id. at A10. 

The court stated, however, 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)). The court also recognized 
that “in some cases where the leave was anticipated, an em- 
ployer’s failure to provide notice that the leave counts 
against the FMLA entitlement could interfere with the em- 
ployee’s ability to plan and use future FMLA leave.” Id. at 
A11. 

In the instant case, however, where respondent’s leave 
program was “far more generous than the baseline estab- 
lished by the FMLA,” and petitioner’s “medical condition 

9 

rendered her unable to work for substantially longer than 
the FMLA twelve-week period,” the court of appeals con- 
cluded that applying the notice regulations would “directly 
contradict the statute by increasing the amount of leave that 
an employer must provide.” Pet. App. A11. Under those cir- 
cumstances, the court found that treating what it character- 
ized as respondent’s “technical violation” of the designation 
regulations “as a denial of [petitioner’s] FMLA rights would 
be an egregious elevation of form over substance; a result 
clearly not contemplated by the FMLA.” Ibid. 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. 

DISCUSSION 

The court of appeals erred in holding invalid a DOL 
regulation, 29 C.F.R. 825.700(a), that is designed to ensure 
that employees covered by the FMLA are able to make 
informed choices concerning the exercise of their statutory 
rights. The instant case is not an optimal vehicle, however, 
for deciding whether that regulatory provision is valid. And 
while the court of appeals’ decision is in substantial tension 
with the ruling of the Sixth Circuit in Plant v. Morton 
International, Inc., 212 F.3d 929 (2000), no square circuit 
conflict exists, since that case involved paid leave and there- 
fore focused on a separate regulation, 29 C.F.R. 825.208(c). 
The petition for certiorari should therefore be denied. 

1. “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 promulgated 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 

10 

with broad authority to “prescribe such regulations as are 
necessary to carry out” the Act. 29 U.S.C. 2654. In light of 
Congress’s express conferral of legislative rulemaking 
authority, a court in applying the Secretary’s FMLA regula- 
tions “must accord the [Secretary’s] assessment ‘controlling 
weight unless [it is] 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)). 

The regulation at issue in this case—29 C.F.R. 825.700(a) 
—complements other regulatory provisions intended to pro- 
vide employees covered by the FMLA with adequate infor- 
mation concerning their rights and responsibilities under the 
Act. As we explain above (see p. 2, supra), “[e]very em- 
ployer covered by the FMLA is required to post and keep 
posted on its premises * * * a notice explaining the Act’s 
provisions and providing information concerning the proce- 
dures for filing complaints of violations of the Act.” 29 
C.F.R. 825.300(a). The prototype notice prepared by 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 somewhat 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); Pt. 825 App. D. 

That regulatory mandate 

reflects the Secretary’s determination that the FMLA’s pur- 
poses cannot adequately be realized if workers are unaware 
of their rights and responsibilities under the Act. Recent 
empirical studies indicate that most employees know too 
little 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 

11 

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 resources professionals suggested 
that only 29% of employees 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 employ- 
ees who have actually requested leave for an FLMA-covered 
reason–-and who are therefore especially in need of infor- 
mation regarding the Act’s provisions–-must receive more 
detailed and specific notice concerning the Act than is 
required to be posted for the work force generally. It should 
be noted, in this regard, that because employers typically 
provide some form of parental 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.1 An understanding of the Act’s provisions therefore 
may substantially assist the worker, who may have rights 
under the Act (e.g., entitlement to a longer period of leave, 
and to restoration to the same or an equivalent job) that go 
beyond the terms of the employer’s own leave policy. 

As a practical matter, an employee’s full understanding of 
his rights and responsibilities under the FMLA requires an 
awareness that a particular period of leave will be counted 

1 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 employee need not expressly assert 
rights under the FMLA or even mention the FMLA.” 29 C.F.R. 
825.302(c), 825.303(b). Thus, the request for leave will not necessarily 
reflect the employee’s awareness that the FMLA exists, let alone a 
thorough understanding of the worker’s rights and responsibilities under 
the Act. 

12 

against his 12-week annual entitlement under the Act. The 
designation and notice requirements contained in 29 C.F.R. 
825.208(a), 825.208(c), and 825.700(a)—i.e., the requirements 
that an employer must determine and inform the employee 
in advance that a particular leave period will be treated as 
FMLA leave—are therefore properly understood as part of 
a larger regulatory effort to make the FMLA’s protections 
meaningful by increasing employee understanding of the 
Act’s provisions. Those requirements impose no onerous 
burden on the employer. In order to ensure compliance with 
the Act, the employer must necessarily make its own 
internal determination whether particular leave periods will 
be treated as FMLA leave. The regulations at issue in this 
case simply direct the employer to make that determination 
at the outset of the leave period (to the extent that is 
feasible) and to communicate that determination promptly to 
the affected employee. 

The pertinent regulatory provisions also state, as a cate- 
gorical 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), 
825.700(a). That prophylactic rule will sometimes place the 
employee in a better position than if the employer 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 if respondent had promptly 
informed her that her leave would be counted against the 
FMLA limit. The Secretary has reasonably determined, 
however, that the predictability and ease of administration 
of a categorical 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 

13 

steps the employee might have taken had he received timely 
notice. Cf. Mourning, 411 U.S. at 374 (agency may by rule 
“require[] some individuals to submit to regulation who do 
not participate in the conduct the legislation was intended to 
deter or control,” in order to provide “a reasonable margin to 
insure effective enforcement”). 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. 2180, 2207 (1995).2 

2. The court of appeals in this case 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.” Pet. App. A7. The court noted as well that 
“[e]ntirely absent from the text of the FMLA is any indica- 
tion that the FMLA was designed to entitle an employee to 

2 The DOL regulations make clear that paid vacation or personal leave 
provided under an employer’s own policies may be counted against the 
employee’s 12-week FMLA entitlement if the leave is in fact used for an 
FMLA-covered purpose, even if the employee’s request for leave does not 
mention that purpose. The regulations explain, by way of example, that if 
an employee requests and receives two weeks of paid vacation leave, and 
suffers a serious injury midway through the two-week period, the em- 
ployer may designate the second week as FMLA leave and may count that 
time against the employee’s 12-week entitlement. 29 C.F.R. 825.208(d). 
The potential for confusion, and for disagreement between the employer 
and employee as to whether particular leave should be counted against the 
12-week entitlement, is especially great when the employee’s leave re- 
quest does not explicitly invoke an FMLA-covered purpose. The pre- 
amble to 29 C.F.R. 825.208 suggests a particular focus on such situations. 
See 60 Fed. Reg. at 2207-2208. Sections 825.208(c) and 825.700(a) apply by 
their terms, however, even in cases like this one, where petitioner’s re- 
quest for leave was explicitly premised on the existence of a serious health 
problem. 

14 

additional leave under the FMLA when the employer’s leave 
plan already provides for twelve weeks of FMLA qualifying 
leave.” Id. at A7-A8. The court of appeals found the regula- 
tory provisions at issue in this case to be inconsistent with 
the balance struck by Congress. That analysis is mis- 
conceived. 

Nothing in the DOL regulations requires any employer to 
allow any employee to take more than 12 weeks of leave for 
an FLMA-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 entitlement 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. Absent any reason to believe that compliance with 
that 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. 

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 provided under this 
subchapter [29 U.S.C. 2611-2619].” 29 U.S.C. 2615(a)(1). 
The expert agency has reasonably concluded that an em- 
ployee’s informed exercise of FMLA rights requires prior 
notice that particular periods of leave will be counted against 
the worker’s 12-week statutory entitlement. An employer 
that treats particular periods as FMLA leave after failing to 
provide the requisite notice may properly be said to “inter- 
fere with” or “restrain” the employee’s exercise of his rights 
under the Act, even though the employee receives 12 weeks 
of leave. 

Indeed, the court of appeals in this case “stressed that the 
court [wa]s not holding that any DOL regulations requiring 
employers to designate leave as FMLA leave would be 

15 

invalid.” Pet. App. A10. The court observed, by way of 
example, that “notice could be necessary where the em- 
ployee 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, how- 
ever, the effect of the challenged regulations is to require the 
employer to allow more than 12 weeks of leave for an 
FMLA-covered reason, based on the employer’s non-compli- 
ance with the regulatory notice requirement. Thus, the 
court of appeals’ decision 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 
particular 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 required to do so. 
Given the breadth of the Secretary’s rulemaking authority 
under the Act (compare Mourning, 411 U.S. at 369-378), and 
the evident desirability of avoiding difficult retrospective 
inquiries into the presence or absence of prejudice in 
individual cases (see pp. 12-13, supra), the agency acted 
within its sphere of lawful discretion in proceeding by way of 
a prophylactic rule. 

3. At the time that petitioner initially requested leave, 
she had worked for respondent for less than a year and 
therefore was not an “eligible employee” within the meaning 
of the FMLA. See 29 U.S.C. 2611(2)(A)(i) (“eligible em- 
ployee” must have been “employed * * * for at least 12 
months by the employer with respect to whom leave is 
requested”); see also Pet. App. B4. In the district court, 
respondent contended that petitioner’s “eligibility for FMLA 
leave must only be determined on the date that leave first 
commenced,” and that her FMLA claim should be dismissed 

16 

on that ground. Ibid. The district court rejected that 
argument, holding that petitioner had become an “eligible 
employee” by the time that she submitted her first request 
for extension of leave and accordingly was entitled to the 
protections of the Act. See id. at B4-B6. 

The district court’s holding was correct. See 29 C.F.R. 
825.110(b) (“If an employee is maintained on the payroll for 
any part of a week, including any periods of paid or unpaid 
leave (sick, vacation) during which other benefits or 
compensation are provided by the employer * * *, the week 
counts as a week of employment” in determining whether 
the individual has been “employed” by the employer for the 
requisite 12 months.). The circumstances described above 
mean, however, that the notice question arises here in an 
atypical factual context. The pertinent DOL regulations 
direct the employer to designate leave as FMLA leave either 
at the time that leave is requested, or at such later time as 
the employer acquires new information indicating that leave 
has been taken for an FMLA-covered reason. See, e.g., 29 
C.F.R. 825.208(c) (stating, with respect to paid leave, that 
“[t]he employer’s designation must be made before the leave 
starts, unless the employer does not have sufficient infor- 
mation as to the employee’s reason for taking the leave until 
after the leave commenced”). The regulations do not 
specifically contemplate (and we are aware of no other judi- 
cial decision addressing) the situation presented here, where 
the notice requirement was triggered neither by the initial 
leave request, nor by the acquisition of new information 
bearing on the reasons for which leave was taken, but by 
petitioner’s newly acquired status as an “eligible employee.” 

4. Petitioner contends (Pet. 11) that the court of appeals’ 
decision in this case “is in direct conflict with” the Sixth 
Circuit’s decision in Plant v. Morton International, Inc., 212 
F.3d 929 (2000). In our view, although there is considerable 

17 

tension between the two decisions, there is no square 
conflict.3 

In Plant, an employee suffered a workplace injury on 
April 26, 1996, and thereafter took paid disability leave. 212 
F.3d at 932. His employment was terminated on June 7, 
1996. Ibid. Thus, if Plant was in fact dismissed from employ- 
ment based on his disability and ensuing leave (an allegation 
that the company denied, see id. at 932-933), there was no 
dispute that the company had failed to provide the 12 weeks 
of leave mandated by the FMLA. The company contended, 
however, and the district court agreed, that Plant was not 
entitled to relief under the FMLA because he would have 
been physically unable to return to work until August 5, 
1996—more than 12 weeks after his injury—even if he had 
not been fired at an earlier time. Id. at 934. 

The Sixth Circuit rejected that argument on the ground 
that the employer had “never informed Plant that it was 
counting his paid absence against the statutory FMLA 
allowance,” and that under 29 C.F.R. 825.208(c) Plant’s 12- 
week leave entitlement under the Act had therefore never 
begun to run. 212 F.3d at 934-935. The Sixth Circuit 
concluded that 

3 Neither Manuel v. Westlake Polymers Corp., 66 F.3d 758 (5th Cir. 
1995), nor Cline v. Wal-Mart Stores, Inc., 144 F.3d 294 (4th Cir. 1998), also 
cited by petitioner (see Pet. 13-14), conflicts with the court of appeals’ 
decision in this case. The court in Manuel considered and approved DOL 
regulations providing that an employee may effectively invoke the pro- 
tections of the FMLA by requesting leave for an FMLA-covered reason, 
even if he does not mention the Act. 66 F.3d at 761-763; see note 1, supra. 
Although the court briefly noted the employer’s duty under the DOL 
regulations to designate leave as FMLA-qualifying, see 66 F.3d at 762, it 
did not discuss either 29 C.F.R. 825.208(c) or 29 C.F.R. 825.700(a). The 
court in Cline did apply Section 825.700(a), see 144 F.3d at 300-301 & n.1, 
but the employer in that case did not contest the validity of the regulation. 
Although petitioner relies in part on those decisions, she acknowledges 
(Pet. 14) that “neither Cline nor Manuel directly addressed the validity of 
the regulations at bar.” 

18 

§ 825.208(c) evinces a reasonable understanding of the 
FMLA, reflecting Congress’s concern with providing 
ample notice to employees of their rights under the 
statute. * * * Moreover, because the FMLA was 
intended to set out minimum labor standards, we do not 
believe that § 825.208(c) is inconsistent with legislative 
intent merely because it creates the possibility that 
employees could end up receiving more than twelve 
weeks of leave in one twelve-month period, due to an 
employer’s failure to notify them that the clock has 
started to run on their allotted period of leave. 

Id. at 935-936. 

Plant is distinguishable from the instant case on two 
bases. First, the employer in Plant dismissed the plaintiff 
less than 12 weeks after the plaintiff ’s leave commenced. 
The court did not—as in this case—award additional leave as 
a result of the employer’s failure to give prior notice that 
Plant’s leave would count against his FMLA entitlement, 
but rather relied on that failure only in rejecting the em- 
ployer’s contention that no FMLA violation had occurred 
because Plant would have been physically unable to return 
to work at the conclusion of a 12-week leave period. Second, 
the employee in Plant requested and received paid leave, 
and the Sixth Circuit’s decision focused primarily on 29 
C.F.R. 825.208(c), which addresses only paid leave. In the 
instant case, the opinions below rather strongly suggest, 
though they do not expressly state, that petitioner’s leave 
was unpaid, see pp. 5-6, supra, and the Eighth Circuit in the 
end invalidated only 29 C.F.R. 825.700(a), which addresses 
both paid and unpaid leave. Pet. App. A11. Indeed, in 
identifying the other judicial decisions that have addressed 
the DOL regulations, the court of appeals in this case de- 
scribed the Sixth Circuit’s decision in Plant as “distinguish- 
ing between notice requirements for paid as opposed to 

19 

unpaid leave,” while also noting that the Sixth Circuit 
“appear[ed] to uphold both 29 C.F.R. §§ 825.208(c) and 
825.700(a) as valid exercises of regulatory power.” Pet. App. 
A11. Because the FMLA provides an entitlement only to 
unpaid leave, see 29 U.S.C. 2612(c), and because the Act 
itself contains a specific subsection (29 U.S.C. 2612(d)) 
addressing the substitution of paid leave for leave provided 
under the FMLA, the judgment that underlies 29 C.F.R. 
825.208(c) and 825.700(a)—i.e., that an employee who re- 
quests leave for an FMLA-covered purpose may be unaware 
that the leave will count against the 12-week FMLA 
entitlement—may apply with somewhat greater force when 
the employee requests paid leave. 

For the foregoing reasons, we do not believe that the 
court of appeals’ decision in this case squarely conflicts with 
the Sixth Circuit’s decision in Plant. There is, to be sure, 
considerable tension between the two decisions. Although 
the employee in Plant was dismissed less than 12 weeks 
after the commencement of leave, the Sixth Circuit’s deci- 
sion does not suggest that its approval of the regulatory 
notice requirement was dependent on that fact. The court in 
Plant did attach significance to the fact that the case 
involved paid leave: it distinguished its prior decision in 
Cehrs v. Northeast Ohio Alzheimer’s Research Center, 155 
F.3d 775 (6th Cir. 1998), on the ground that “the employee in 
Cehrs had taken unpaid leave rather than paid leave; 
therefore, the court had no occasion to address § 825.208(c), 
which appears to govern only those cases in which an 
employer wishes to designate paid leave as FMLA leave.” 
212 F.3d at 935 (citation omitted). However, the court of 
appeals in Plant recognized that 29 C.F.R. 825.700(a) “pre- 
scribe[s] almost identical notice rules when employers wish 
to designate unpaid leave as FMLA leave,” 212 F.3d at 935 

n.1, and it expressed its disagreement with several other 
decisions that held that 29 C.F.R. 825.208(c) and 825.700(a) 

20 

were in conflict with the FMLA’s creation of an entitlement 
to 12 weeks of leave, “conclud[ing] that those regulations are 
valid and forbid employers from retroactively designating 
FMLA leave if they have not given proper notice to their 
employees that their statutory entitlement period has begun 
to run,” 212 F.3d at 936. 

5. Issues concerning the Secretary’s implementation of 
the FMLA may ultimately warrant resolution by this Court. 
On balance, however, we believe that the petition for certio- 
rari in this case should be denied. We agree that consider- 
able tension exists between the court of appeals’ decision in 
this case and the Sixth Circuit’s decision in Plant. In the 
end, however, we believe that because this case appears to 
involve unpaid leave and Plant involved paid leave, and 
because for that reason the decisions focus on separate 
regulations, the difference in the result in the two cases is 
not such as to warrant review by this Court at the present 
time. The anomalous factual circumstances involved in this 
case, moreover, make it a less than optimal vehicle for 
resolution of the question presented. 

CONCLUSION 

The petition for a writ of certiorari should be denied. 

Respectfully submitted. 

JUDITH E. KRAMER 

Acting Solicitor of Labor 

ALLEN H. FELDMAN 

Associate Solicitor 

NATHANIEL I. SPILLER 

Deputy Associate Solicitor 

ELLEN L. BEARD 

Attorney 
Department of Labor 
BARBARA D. UNDERWOOD 

Acting Solicitor General 

EDWIN S. KNEEDLER 

Deputy Solicitor General 

MALCOLM L. STEWART 

Assistant to the Solicitor 

General 

MAY 2001