Labor & Employment Law

In Chandler v. Bernanke, No. 06-2082(EGS), 2008 U.S. Dist. LEXIS 6224 (D.D.C. Jan. 30, 2008), the court correctly observed that whether a federal employee has a private right of action for violation of the FMLA depends on whether they are covered by Title I, which has a private right of action, or Title II, which does not. Unfortunately, the court went on to incorrectly find that Title II covers federal employees with more than 12 months of federal service whereas Title I covers federal employees with less than 12 months of service. The decision confuses FMLA coverage with employee eligibility, and gets the eligibility component wrong to boot.

FMLA Coverage of the Federal Government

There are four variants of the FMLA that apply to different segments of the government of the United States. Civil service employees wherever employed in the federal government are covered by Title II of the FMLA. See 5 U.S.C 6381(1)(A); 29 CFR 825.109(a). Most non-civil service employees of the federal government are covered by Title I of the FMLA, including all Postal employees and civilians in the military. See 29 CFR 825.109. Congressional employees are covered by the FMLA provisions of the Congressional Accountability Act (CAA), 2 USC 1302(a)(6). Employees of the Executive Office of the President (e.g., White House, Council of Economic Advisors, National Security Council OMB) are covered by the FMLA provisions of the Presidential and Executive Office Accountability Act (PEOAA), 3 USC 402, 412.

The above federal sector FMLA coverages apply regardless of the number of months of service of any particular federal employee.

Eligibility

The federal government at large is covered by the FMLA. That does not mean, however, that all federal employees are automatically entitled to FMLA leave. All four federal sector FMLA variants impose additional eligibility requirements before an employee is entitled to exercise FMLA rights. A federal employee who does not meet the applicable eligibility requirements is not entitled to FMLA leave.

Critically, 12 months or more of federal employment is required to be eligible for FMLA leave under all four federal sector FMLA variants. See 29 U.S.C. 2611(2)(A)(i)(Title I); 5 U.S.C. 6381(1)(B)(Title II); 2 USC 1312(a)(2)(B)(CAA); 3 USC 412(a)(2)(B)(PEOAA). Some federal sector variants have additional eligibility requirements a federal employee must meet before they are entitled to FMLA leave.

The court's determination in Chandler that Title I applies to federal employee with less than 12 months of federal service is flat out wrong.

Comment: The court was correct that a civil service employee covered by Title II of the FMLA does not enjoy the right to sue his or her federal employer for violations of the FMLA. In contrast, a Title I covered federal employee may sue his or her employer for violations of the FMLA. The difference has its roots in the legislative history of the law.

Title I applies to the private sector as well as non-civil service federal employees. Congress wanted to give private sector employees the right to sue employers for violating their FMLA rights. The non-civil service federal employees covered by Title I received the same right. The legislative history of Title II, in contrast, included some Congressional statements suggesting that existing grievance systems were an adequate means to redress Title II FMLA violations. As a result, civil service employees covered by Title II do not have the right to sue for FMLA violations.

Federal employees covered by the CAA and PEOAA also enjoy the right to file a lawsuit for FMLA violations. Unlike Title I, the CAA and the PEOAA require administrative exhaustion before a suit is filed.

The court probably reached the correct decision in the case. If, as is likely, Chandler was a civil service employee covered by Title II, she did not have the right to file a lawsuit for violation of the FMLA regardless of the number of months she has been employed with the Federal Reserve.

It is, however, possible that Chandler was a non-civil service employee. In that case, Chandler would have met the 12 months of employment eligibility requirement. The court would also have to determine if she met the two other eligibility requirements under Title I. If she did, all other things being equal, Chandler could maintain a lawsuit in the event her employer interfered with her right to take FMLA leave.

The errant decision of the court in Chandler is attributable to its reliance on erroneous precedent in Sullivan-Obst v. Powell, 300 F. Supp. 2d 85, 99 (D.D.C. 2004)(citing Gardner v. United States, 1999 U.S. Dist. LEXIS 2195, 1999 WL 164412 at *7 (D.D.C. Jan. 29, 1999).

Before it inadvertently denies a federal employee the right to maintain an FMLA suit the District Court for the District of Columbia needs to correct this matter.