In what must have been a frustrating experience for the plaintiff, the 10th Circuit ruled recently that the Family and Medical Leave Act’s “50 employees/75-mile area” requirement (a prerequisite to an employee being deemed “covered” by FMLA’s provisions) is measured by way of surface miles, not “as the crow flies.” Hackworth v. Progressive Casualty Ins. Co., No. 05-6198 (10th Cir. Nov. 14, 2006). While the parties proffered conflicting evidence about the two locations in question, in linear miles the distance was less than 75-miles, whereas surface miles weighed in at over 75 miles. 

The court’s ruling rested on a doctrine called “Chevron Deference” wherby federal agencies charged with implementing regulations to carry out federal legislation (such as the FMLA) are given some measure of deference in those regulations when Congress hasn’t spoken explicitly on the subject at hand. Here, the plaintiff argued that the legislative history behind the FMLA suggested Congress intended the 75 miles to be interpreted linearly (as evidenced by frequent references to the “75 mile radius”); the 10th Circuit panel, however, believed that language wasn’t as clear as the plaintiff suggested it was, and therefore deferred to the Department of Labor regulation approving the surface-miles interpretation.

The result? The plaintiff did not carry her burden of proof on this cause of action, and therefore lost her case. This may seem unfairly harsh to a lot of employees. Frankly, it seems a little harsh to me, as well, given the purposes of the FMLA and the remedial and protective nature of the Act’s provisions. While I’m not sure I completely agree with the plaintiff’s argument about the word “radius” it is a good argument and one worth examining in more detail. I also agree that the results are nothing less than arbitrary, as they’ll result in two employees with otherwise identical facts meeting opposite ends in a FMLA action, based on nothing more than how straight the road is between two worksites. That can’t be what Congress intended.

Thanks to Jottings by an Employer’s Lawyer for the referral; read Michael W. Fox’s take on this case at the link.