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High Court won’t hear FMLA case

 The U.S. Supreme Court has refused to review a federal appeals court ruling that an employee claiming the protection of the federal Family and Medical Leave Act (FMLA) must show that her employer had 50 or more employees within 75 “surface miles” of one another.

The employee had claimed that the 75 miles should be measured in linear miles, from point to point. But the U.S. Court of Appeals for the Tenth Circuit disagreed, upholding the U.S. Department of Labor’s (DOL) interpretation that the miles are measured by reference to “surface miles, using surface transportation over public streets.” The DOL regulation is a “plausible and reasonable reading” of the FMLA, said the appeals court, since most employees use some form of surface transportation to commute to work.

The employer in the case had 47 employees in one facility and three employees in another facility; the two facilities were 75.6 surface miles apart, but only 67 linear miles apart. The employee had taken leave to care for her sick mother, and a dispute arose over whether her job was protected under the FMLA.

In her petition for Supreme Court review, the employee argued that the DOL’s position was arbitrary and inconsistent with the FMLA’s legislative history. Although the high court won’t be hearing the FMLA allegations, other litigation between the employee and the employer continues in federal court in the form of a separate sex discrimination lawsuit.

For an update on the FMLA and the latest on a host of employment and workplace issues, don’t miss The Connecticut Workplace Law Symposium on Oct 19 at the Trumbull Marriott, sponsored by CBIA and the national employment law firm Jackson Lewis. For more information contact Lise Cliche at 860 244 1977 or clichel@cbia.com.