OCTOBER TERM, 2001
Syllabus
RAGSDALE ET AL.
v. WOLVERINE WORLD WIDE, INC.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT
No. 00-6029. Argued January 7, 2002-Decided March 19,2002
The Family and Medical Leave Act of 1993 (FMLA or Act)
guarantees qualifying employees 12 weeks of unpaid leave each year
and encourages businesses to adopt more generous policies.
Respondent Wolverine World Wide, Inc., granted petitioner Ragsdale
30 weeks of medical leave under its more generous policy in 1996.
It refused her request for additional leave or permission to work
part time and terminated her when she did not return to work. She
filed suit, alleging that 29 CFR § 825.700(a), a Labor Department
regulation, required Wolverine to grant her 12 additional weeks of
leave because it had not informed her that the 30-week absence
would count against her FMLA entitlement. The District Court
granted Wolverine summary judgment, finding that the regulation was
in conflict with the statute and invalid because it required
Wolverine to grant Ragsdale more than 12 weeks of FMLA-compliant
leave in one year. The Eighth Circuit agreed.
Held: Section 825.700(a) is contrary to the Act and
beyond the Secretary of Labor's authority. Pp. 86-96.
(a) To determine whether § 825.700(a) is a valid exercise of the
Secretary's authority to issue regulations necessary to carry out
the FMLA, see 29 U. S. C. § 2654, this Court must consult the Act,
viewing it as a "symmetrical and coherent regulatory scheme,"
Gustafson v.
Alloyd Co., 513 U. S. 561, 569. Among
other things, the Act subjects an employer that interferes with,
restrains, or denies the exercise of an employee's FMLA rights, §
2615(a)(1), to consequential damages and equitable relief, §
2617(a)(1); and requires the employer to post a notice of FMLA
rights on its premises, § 2619(a). The Secretary's regulations
require, in addition, that an employer give employees written
notice that an absence will be considered FMLA leave. 29 CFR §
825.208. Even assuming that this regulatory requirement is valid,
the Secretary's categorical penalty for its breach is contrary to
the Act. Section 825.700(a) punishes an employer's failure to
provide timely notice of the FMLA designation by denying the
employer any credit for leave granted before the notice, and the
penalty is unconnected to any prejudice the employee might have
suffered from the employer's lapse. The employee will be entitled
to 12 additional weeks of leave even if he or
82
she would have acted in the same manner had notice been given
and can sue if not granted the additional leave. Pp. 86-89.
(b) This penalty is incompatible with the FMLA's remedial
mechanism. To prevail under § 2617, an employee must prove that the
employer violated § 2615 by interfering with, restraining, or
denying the exercise of FMLA rights. Even then, § 2617 provides no
relief unless the employee has been prejudiced by the violation. In
contrast, §825.700(a) establishes an irrebuttable presumption that
the employee's exercise of FMLA rights was restrained. There is no
empirical or logical basis for this presumption, as the facts of
this case demonstrate. Ragsdale has not shown that she would have
taken less, or intermittent, leave had she received the required
notice. In fact her physician did not clear her to work until long
after her 30-week leave period had ended. Blind to the reality that
she would have taken the entire 30-week absence even had Wolverine
complied with the notice regulations, §825.700(a) required the
company to give her 12 more weeks and rendered it liable under §
2617 when it denied her request and terminated her. The regulation
fundamentally alters the FMLA's cause of action by relieving
employees of the burden of proving any real impairment of their
rights and resulting prejudice. The Government claims that its
categorical rule is easier to administer than a fact-specific
inquiry, but Congress chose a remedy requiring the retrospective,
case-by-case examination the Secretary now seeks to eliminate. The
regulation instructs courts to ignore § 2617's command that
employees prove impairment of their statutory rights and resulting
harm. Agencies are not authorized to contravene Congress' will in
this manner. Cf.
Mourning v.
Family Publications Service,
Inc., 411 U. S.
356. Pp. 89-92.
(c) Section 825.700(a) would be an unreasonable choice even if
the Secretary were authorized to circumvent the FMLA's remedial
provisions for the sake of administrative convenience. Categorical
rules reflect broad generalizations holding true in so many cases
that inquiry into whether they apply to the case at hand would be
needless and wasteful. However, when the generalizations fail to
hold in the run of cases, as is true here, the justification for
the categorical rule disappears. See,
e. g., State Oil Co.
v.
Khan, 522 U.
S. 3, 8-22. Pp.92-93.
(d) Inasmuch as the Secretary's penalty will have no substantial
relation to the harm to the employee in the run of cases, it also
amends the FMLA's fundamental guarantee of entitlement to a "total"
of 12 weeks of leave in a 12-month period, a compromise between
employers who wanted fewer weeks and employees who wanted more.
Courts
83
and agencies must respect and give effect to such compromises.
However, the Secretary's penalty subverts this balance by entitling
certain employees to leave beyond the statutory mandate. Pp.
93-94.
(e) That the penalty is disproportionate and inconsistent with
Congress' intent is also evident from § 2619, which assesses a $100
fine for an employer's willful failure to post a general notice. In
contrast, the regulation establishes a much heavier sanction for
any violation of the Secretary's supplemental notice requirement.
P. 95.
(f) Section 825.700(a) is also in considerable tension with the
statute's admonition that nothing in the Act should discourage
employers from adopting more generous policies. Congress was well
aware that the more generous employers, discouraged by technical
rules and burdensome administrative requirements, might be pushed
down to the Act's minimum standard, yet §825.700(a)'s severe,
across-the-board penalty is directed at such employers. Pp.
95-96.
(g) In holding that the bounds of the Secretary's discretion to
issue regulations were exceeded here, this Court does not decide
whether the notice and designation requirements are themselves
valid or whether other remedies for their breach might be
consistent with the statute. P.96.
218 F.3d
933, affirmed.
KENNEDY, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and STEVENS, SCALIA, and THOMAS, JJ., joined.
O'CONNOR, J., filed a dissenting opinion, in which SOUTER,
GINSBURG, and BREYER, JJ., joined,
post, p. 96.
L. Oneal Sutter argued the cause for petitioners. With
him on the briefs was
Eric Schnapper.
Malcolm L. Stewart argued the cause for the United States as
amicus curiae urging reversal. With him on the brief were Solicitor
General Olson, Deputy Solicitor General Kneedler, Howard M.
Radzely, Allen H. Feldman, Nathaniel 1. Spiller, and Ellen L.
Beard.
Richard D. Bennett argued the cause for respondent.
With him on the brief was
James Francis Barna.
*
*Briefs of
amici curiae urging reversal were filed for
the American Federation of Labor and Congress of Industrial
Organizations et al. by
Jonathan P. Hiatt, James B. Coppess,
Judith L. Lichtman, and
Laurence
84
JUSTICE KENNEDY delivered the opinion of the Court. Qualifying
employees are guaranteed 12 weeks of unpaid leave each year by the
Family and Medical Leave Act of 1993 (FMLA or Act), 107 Stat. 6, as
amended, 29 U. S. C. § 2601
et seq. (1994 ed. and Supp. V).
The Act encourages businesses to adopt more generous policies, and
many employers have done so. Respondent Wolverine World Wide, Inc.,
for example, granted petitioner Tracy Ragsdale 30 weeks of leave
when cancer kept her out of work in 1996. Ragsdale nevertheless
brought suit under the FMLA. She alleged that because Wolverine was
in technical violation of certain Labor Department regulations, she
was entitled to more leave.
One of these regulations, 29 CFR § 825.700(a) (2001), did
support Ragsdale's claim. It required the company to grant her 12
more weeks of leave because it had not informed her that the
30-week absence would count against her FMLA entitlement. We hold
that the regulation is contrary to the Act and beyond the Secretary
of Labor's authority. Ragsdale was entitled to no more leave, and
Wolverine was entitled to summary judgment.
I
Ragsdale began working at a Wolverine factory in 1995, but in
the following year she was diagnosed with Hodgkin's disease. Her
prescribed treatment involved surgery and months of radiation
therapy. Though unable to work during this time, she was eligible
for seven months of unpaid sick leave under Wolverine's leave plan.
Ragsdale requested
Gold; and for the National Employment Lawyers Association
et al. by
Ronald B. Schwartz and
Paula A.
Brantner.
Ann Elizabeth Reesman, Daniel V. Yager, Stephen A. Bokat, Robin
S.
Conrad, and
Heather L. MacDougall filed a brief
for the Equal Employment Advisory Council et al. as
amici
curiae urging affirmance.
Jack Whitacre filed a brief for Human Resource Management
as
amicus curiae.
85
and received a i-month leave of absence on February 21, 1996,
and asked for a 30-day extension at the end of each of the seven
months that followed. Wolverine granted the first six requests, and
Ragsdale missed 30 consecutive weeks of work. Her position with the
company was held open throughout, and Wolverine maintained her
health benefits and paid her premiums during the first six months
of her absence. Wolverine did not notify her, however, that 12
weeks of the absence would count as her FMLA leave.
In September, Ragsdale sought a seventh 30-day extension, but
Wolverine advised her that she had exhausted her seven months under
the company plan. Her condition persisted, so she requested more
leave or permission to work on a part-time basis. Wolverine refused
and terminated her when she did not come back to work.
Ragsdale filed suit in the United States District Court for the
Eastern District of Arkansas. Her claim relied on the Secretary's
regulation, which provides that if an employee takes medical 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 CFR § 825.700(a) (2001). The required designation had not been
made, so Ragsdale argued that her 30 weeks of leave did "not count
against [her] FMLA entitlement."
Ibid. It followed that when
she was denied additional leave and terminated after 30 weeks, the
statute guaranteed her 12 more weeks. She sought reinstatement,
backpay, and other relief.
When the parties filed cross-motions for summary judgment,
Wolverine conceded it had not given Ragsdale specific notice that
part of her absence would count as FMLA leave. It maintained,
however, that it had complied with the statute by granting her 30
weeks of leave-more than twice what the Act required. The District
Court granted summary judgment to Wolverine. In the court's view
the regulation was in conflict with the statute and invalid
because, in effect, it required Wolverine to grant Ragsdale more
than
86
12 weeks of FMLA-compliant leave in one year. The Court of
Appeals for the Eighth Circuit agreed.
218 F.3d
933 (2000).
We granted certiorari, 533 U. S. 928 (2001), and now affirm.
II
Wolverine's challenge concentrates on the validity of a single
sentence in § 825.700(a). This provision is but a small part of the
administrative structure the Secretary devised pursuant to
Congress' directive to issue regulations "necessary to carry out"
the Act. 29 U. S. C. § 2654 (1994 ed.). The Secretary's judgment
that a particular regulation fits within this statutory constraint
must be given considerable weight. See
United States v.
O'Hagan, 521
U. S. 642, 673 (1997) (citing
Batterton v.
Francis, 432
U. S. 416, 424-426 (1977)). Our deference to the Secretary,
however, has important limits: A regulation cannot stand if it is
"'arbitrary, capricious, or manifestly contrary to the statute.'"
United States v.
O'Hagan, supra, at 673 (quoting
Chevron U. S.
A. Inc. v.
Natural Resources Defense
Council, Inc., 467 U. S. 837, 844
(1984)). To determine whether § 825.700(a) is a valid exercise of
the Secretary's authority, we must consult the Act, viewing it as a
"symmetrical and coherent regulatory scheme."
Gustafson v.
Alloyd Co., 513 U. S. 561, 569
(1995).
The FMLA's central provision guarantees eligible employees 12
weeks of leave in a i-year period following certain events: a
disabling health problem; a family member's serious illness; or the
arrival of a new son or daughter. 29 U. S. C. § 2612(a)(1). During
the mandatory 12 weeks, the employer must maintain the employee's
group health coverage. § 2614(c)(1). Leave must be granted, when
"medically necessary," on an intermittent or part-time basis. §
2612(b)(1). Upon the employee's timely return, the employer must
reinstate the employee to his or her former position or an
equivalent. § 2614(a)(1). The Act makes it un-
87
lawful for an employer to "interfere with, restrain, or deny the
exercise of" these rights, § 2615(a)(1), and violators are subject
to consequential damages and appropriate equitable relief, §
2617(a)(1).
A number of employers have adopted policies with terms far more
generous than the statute requires. Congress encouraged as much,
mandating in the Act's penultimate provision that "[n]othing in
this Act ... shall be construed to discourage employers from
adopting or retaining leave policies more generous than any
policies that comply with the requirements under this Act." § 2653.
Some employers, like Wolverine, allow more than the 12-week annual
minimum; others offer paid leave. U. S. Dept. of Labor, D. Cantor
et al., Balancing the Needs of Families and Employers: Family and
Medical Leave Surveys 5-10, 5-12 (2001) (22.9% of FMLA-covered
establishments allow more than 12 weeks of leave per year; 62.7%
provide paid disability leave). As long as these policies meet the
Act's minimum requirements, leave taken may be counted toward the
12 weeks guaranteed by the FMLA. See 60 Fed. Reg. 2230 (1995)
("[E]mployers may designate paid leave as FMLA leave and offset the
maximum entitlements under the employer's more generous
policies").
With this statutory structure in place, the Secretary issued
regulations requiring employers to inform their workers about the
relationship between the FMLA and leave granted under company
plans. The regulations make it the employer's responsibility to
tell the employee that an absence will be considered FMLA leave. 29
CFR § 825.208(a) (2001). Employers must give written notice of the
designation, along with detailed information concerning the
employee's rights and responsibilities under the Act, "within a
reasonable time after notice of the need for leave is given by the
employee-within one or two business days if feasible." §
825.301(c).
88
The regulations are in addition to a notice provision explicitly
set out in the statute. Section 2619(a) requires employers to "keep
posted, in conspicuous places ... , a notice ... setting forth
excerpts from, or summaries of, the pertinent provisions of this
subchapter and information pertaining to the filing of a charge."
According to the Secretary, the more comprehensive and
individualized notice required by the regulations is necessary to
ensure that employees are aware of their rights when they take
leave. See 60 Fed. Reg. 2220 (1995). We need not decide today
whether this conclusion accords with the text and structure of the
FMLA, or whether Congress has instead "spoken to the precise
question" of notice,
Chevron, supra, at 842, and so
foreclosed the notice regulations. Even assuming the additional
notice requirement is valid, the categorical penalty the Secretary
imposes for its breach is contrary to the Act's remedial
design.
The penalty is set out in a separate regulation, § 825.700,
which is entitled "What if an employer provides more generous
benefits than required by the FMLA 7" This is the sentence on which
Ragsdale relies:
"If 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 CFR § 825.700(a)
(2001).
This provision punishes an employer's failure to provide timely
notice of the FMLA designation by denying it any credit for leave
granted before the notice. The penalty is unconnected to any
prejudice the employee might have suffered from the employer's
lapse. If the employee takes an undesignated absence of 12 weeks or
more, the regulation always gives him or her the right to 12 more
weeks of leave that year. The fact that the employee would have
acted in the same manner if notice had been given is, in the
Secretary's view, irrelevant. Indeed, as we understand the Sec-
89
retary's position, the employer would be required to grant the
added 12 weeks even if the employee had full knowledge of the FMLA
and expected the absence to count against the 12-week entitlement.
An employer who denies the employee this additional leave will be
deemed to have violated the employee's rights under § 2615 and so
will be liable for damages and equitable relief under § 2617.
The categorical penalty is incompatible with the FMLA's
comprehensive remedial mechanism. To prevail under the cause of
action set out in § 2617, an employee must prove, as a threshold
matter, that the employer violated § 2615 by interfering with,
restraining, or denying his or her exercise of FMLA rights. Even
then, § 2617 provides no relief unless the employee has been
prejudiced by the violation: The employer is liable only for
compensation and benefits lost "by reason of the violation," §
2617(a)(1)(A)(i)(I), for other monetary losses sustained "as a
direct result of the violation," § 2617(a)(1)(A)(i)(II), and for
"appropriate" equitable relief, including employment,
reinstatement, and promotion, § 2617(a)(1)(B). The remedy is
tailored to the harm suffered. Cf.
EEOC v.
Waffle House,
Inc., 534 U. S.
279, 292-293 (2002) (provisions in Title VII stating that
plaintiffs "may recover" damages and "appropriate" equitable relief
"refer to the trial judge's discretion in a particular case to
order reinstatement and award damages in an amount warranted by the
facts of that case").
Section 825.700(a), Ragsdale contends, reflects the Secretary's
understanding that an employer's failure to comply with the
designation requirement might sometimes burden an employee's
exercise of basic FMLA rights in violation of § 2615. Consider, for
instance, the right under § 2612(b)(1) to take intermittent leave
when medically necessary. An employee who undergoes cancer
treatments every other week over the course of 12 weeks might want
to work during the off weeks, earning a paycheck and saving six
weeks for later. If she is not informed that her absence
qualifies
90
as FMLA leave-and if she does not know of her right under the
statute to take intermittent leave-she might take all 12 of her
FMLA-guaranteed weeks consecutively and have no leave remaining for
some future emergency. In circumstances like these, Ragsdale
argues, the employer's failure to give the notice required by the
regulation could be said to "deny," "restrain," or "interfere with"
the employee's exercise of her right to take intermittent
leave.
This position may be reasonable, but the more extreme one
embodied in § 825.700(a) is not. The penalty provision does not say
that in certain situations an employer's failure to make the
designation will violate § 2615 and entitle the employee to
additional leave. Rather, the regulation establishes an
irrebuttable presumption that the employee's exercise of FMLA
rights was impaired-and that the employee deserves 12 more weeks.
There is no empirical or logical basis for this presumption, as the
facts of this case well demonstrate. Ragsdale has not shown that
she would have taken less leave or intermittent leave if she had
received the required notice. As the Court of Appeals noted-and
Ragsdale did not dispute in her petition for certiorari"Ragsdale's
medical condition rendered her unable to work for substantially
longer than the FMLA twelve-week period." 218 F. 3d, at 940. In
fact her physician did not clear her to work until December, long
after her 30-week leave period had ended. Even if Wolverine had
complied with the notice regulations, Ragsdale still would have
taken the entire 30-week absence. Blind to this reality, the
Secretary's provision required the company to grant Ragsdale 12
more weeks of leave-and rendered it liable under § 2617 when it
denied her request and terminated her.
The challenged regulation is invalid because it alters the
FMLA's cause of action in a fundamental way: It relieves employees
of the burden of proving any real impairment of their rights and
resulting prejudice. In the case at hand, the regulation permitted
Ragsdale to bring suit under § 2617,
91
despite her inability to show that Wolverine's actions
restrained her exercise of FMLA rights. Section 825.700(a)
transformed the company's failure to give notice-along with its
refusal to grant her more than 30 weeks of leave-into an actionable
violation of § 2615. This regulatory sleight of hand also entitled
Ragsdale to reinstatement and backpay, even though reinstatement
could not be said to be "appropriate" in these circumstances and
Ragsdale lost no compensation "by reason of" Wolverine's failure to
designate her absence as FMLA leave. By mandating these results
absent a showing of consequential harm, the regulation worked an
end run around important limitations of the statute's remedial
scheme.
In defense of the regulation, the Government notes that a
categorical penalty requiring the employer to grant more leave is
easier to administer than one involving a fact-specific inquiry
into what steps the employee would have taken had the employer
given the required notice. "Regardless of how serious the problem
an administrative agency seeks to address, however, it may not
exercise its authority 'in a manner that is inconsistent with the
administrative structure that Congress enacted into law.'"
FDA v.
Brown &
Williamson Tobacco Corp.,
529 U. S. 120,
125 (2000) (quoting
ETSI Pipeline Project v.
Missouri, 484
U. S. 495, 517 (1988)). By its nature, the remedy created by
Congress requires the retrospective, case-by-case examination the
Secretary now seeks to eliminate. The purpose of the cause of
action is to permit a court to inquire into matters such as whether
the employee would have exercised his or her FMLA rights in the
absence of the employer's actions. To determine whether damages and
equitable relief are appropriate under the FMLA, the judge or jury
must ask what steps the employee would have taken had circumstances
been different-considering, for example, when the employee would
have returned to work after taking leave. Though the Secretary
could not
92
enact rules purporting to make these kinds of determinations for
the courts, § 825.700(a) has this precise effect.
For this reason, the Government's reliance upon
Mourning
v.
Family Publications Service, Inc., 411 U. S. 356 (1973), is
misplaced. Just as the FMLA does not itself require employers to
give individualized notice, see
supra, at 88, the Truth in
Lending Act did not itself require lenders to make certain
disclosures mandated by the regulation at issue in
Mourning.
In sustaining the regulation, we observed that the disclosure
requirement was not contrary to the statute and that the Federal
Reserve Board's rulemaking authority was much broader than the
Secretary's is here. See 411 U. S., at 361-362 (quoting 15 U. S. C.
§ 1604 (1970 ed.) (empowering the Board to issue regulations not
only necessary "to carry out the purposes of [the statute]," but
also "necessary or proper ... to prevent circumvention or evasion
[of the statute], or to facilitate compliance therewith")). The
crucial distinction, however, is that although we referred to the
Board's regulation as a "remedial measure," 411 U. S., at 371, the
disclosure requirement was in fact enforced through the statute's
pre-existing remedial scheme and in a manner consistent with it.
The Board simply assessed violators the $100 minimum statutory fine
applicable to lenders who failed to make required disclosures. See
id., at 376. In contrast, § 825.700(a) enforces the
individualized notice requirement in a way that contradicts and
undermines the FMLA's preexisting remedial scheme. While § 2617
says that employees must prove impairment of their statutory rights
and resulting harm, the Secretary's regulation instructs the courts
to ignore this command. Our previous decisions,
Mourning
included, do not authorize agencies to contravene Congress' will in
this manner.
Furthermore, even if the Secretary were authorized to
reconfigure the FMLA's cause of action for her administrative
convenience, this particular rule would be an unreasonable choice.
As we have noted in other contexts, categorical
93
rules-such as the rule of
per se antitrust
illegality-reflect broad generalizations holding true in so many
cases that inquiry into whether they apply to the case at hand
would be needless and wasteful.
Continental T. V:,
Inc. v.
GTE Sylvania Inc., 433 U. S. 36, 50, n. 16
(1977);
Eastman Kodak Co. v.
Image Technical Services,
Inc., 504 U. S.
451, 486-487 (1992) (SCALIA, J., dissenting). When the
generalizations fail to hold in the run of cases-when, for example,
a particular restraint of trade does not usually present a
pronounced risk of injury to competition-the justification for the
categorical rule disappears. See,
e. g., State Oil Co. v.
Khan, 522 U. S. 3, 8-22 (1997) (rejecting
per se ban
on vertical maximum price fixing). That said, the generalization
made by the Secretary's categorical penalty-that the proper redress
for an employer's violation of the notice regulations is a full 12
more weeks of leave-holds true in but few cases. The employee who
would have taken the absence anyway, of course, would need no more
leave; but the regulation provides 12 additional weeks. Even the
employee who would have chosen to work on an intermittent
basis-say, every other week, see
supra, at 89-90-could claim
an entitlement not to 12 weeks of leave but instead to the 6 weeks
he or she would not have taken. To be sure, 12 more weeks might be
an appropriate make-whole remedy for an employee who would not have
taken any leave at all if the notice had been given. It is not a
"fair assumption,"
United States v.
O'Hagan, 521 U.
S., at 676, however, that this fact pattern will occur in any but
the most exceptional of cases.
To the extent the Secretary's penalty will have no substantial
relation to the harm suffered by the employee in the run of cases,
it also amends the FMLA's most fundamental substantive
guarantee-the employee's entitlement to "a total of 12 workweeks of
leave during any 12-month period." § 2612(a)(1). Like any key term
in an important piece of legislation, the 12-week figure was the
result of compromise between groups with marked but divergent
inter-
94
ests in the contested provision. Employers wanted fewer weeks;
employees wanted more. See H. R. Rep. No. 102135, pt. 1, p. 37
(1991). Congress resolved the conflict by choosing a middle ground,
a period considered long enough to serve "the needs of families"
but not so long that it would upset "the legitimate interests of
employers." § 2601(b).
Courts and agencies must respect and give effect to these sorts
of compromises.
Mohasco Corp. v.
Silver, 447 U. S. 807, 818-819
(1980). The Secretary's chosen penalty subverts the careful
balance, for it gives certain employees a right to more than 12
weeks of FMLA-compliant leave in a given i-year period. This is so
in part because the employee will often enjoy every right
guaranteed by the FMLA during part or all of an undesignated
absence. Under the Secretary's regulations, moreover, employers
must comply with the FMLA's minimum requirements during these
undesignated periods. See,
e. g., 29 CFR § 825.208(c)
(2001) (an employee on paid leave "is subject to the full
protections of the Act" during "the absence preceding the notice to
the employee of the [FMLA] designation"). Here, the Secretary
required Wolverine to maintain Ragsdale's health benefits for at
least 12 weeks of her 30-week absence; if it had not, Ragsdale
could have sued. The penalty provision, in turn, required the
company to grant Ragsdale 12 more weeks after the 30 weeks had
passed. Section 2654 merely authorizes the Secretary to issue rules
"necessary to carry out" the Act, but these regulations extended
Wolverine's liability far beyond the 12-week total guaranteed by
the statute. It is no answer to say, as the Government does, that
the Secretary's provision is consistent with the Act because
employers must provide more than 12 weeks of leave only when they
do not comply with the individualized notice requirement. If this
argument carried the day, a penalty of 24 weeksor 36, or 48-would
also be permissible. Just as those provisions would be contrary to
the FMLA's 12-week mandate, so is § 825.700(a).
95
That the Secretary's penalty is disproportionate and
inconsistent with Congress' intent is evident as well from the sole
notice provision in the Act itself. As noted above, § 2619 directs
employers to post a general notice informing employees of their
FMLA rights. See
supra, at 88. This provision sets out its
own penalty for noncompliance: "Any employer that willfully
violates this section may be assessed a civil monetary penalty not
to exceed $100 for each separate offense." § 2619(b). Congress
believed that a $100 fine, enforced by the Secretary, was the
appropriate penalty for willful violations of the only notice
requirement specified in the statute. The regulation, in contrast,
establishes a much heavier sanction, enforced not by the Secretary
but by employees, for both willful and inadvertent violations of a
supplemental notice requirement.
Section 825.700(a) is also in considerable tension with the
statute's admonition that "[n]othing in this Act ... shall be
construed to discourage employers from adopting or retaining leave
policies more generous than any policies that comply with the
requirements under this Act." § 2653. The FMLA was intended to pull
certain employers up to the minimum standard, but Congress was well
aware of the danger that it might push more generous employers down
to the minimum at the same time. Technical rules and burdensome
administrative requirements, Congress knew, might impose unforeseen
liabilities and discourage employers from adopting policies that
varied much from the basic federal requirements.
Although § 825.700(a) itself is directed toward employers
"provid[ing] more generous benefits than required by the FMLA," its
severe and across-the-board penalty could cause employers to
discontinue these voluntary programs. Compliance with the
designation requirement is easy enough for companies meeting only
the minimum federal requirements:
All leave is given the FMLA designation. Matters are quite
different for companies like Wolverine, which offer more
96
diverse and expansive options to their employees. In addition to
allowing more than 12 weeks of leave per year, these employers
might also provide leave for non-FMLA reasons, or to employees who
are not yet FMLA eligible-leave the Secretary may not permit to be
designated as FMLA leave. See,
e. g., 60 Fed. Reg.
2230 (1995) ("Leave granted under circumstances that do not meet
... specified reasons for FMLA-qualifying leave may
not be
counted against [the] FMLA's 12-week entitlement"). Those employers
must decide, almost as soon as leave is requested, whether to
designate the absence as FMLA leave. The answer might not always be
obvious, and this decision may require substantial investigation.
The regulation imposes a high price for a good-faith but erroneous
characterization of an absence as non-FMLA leave, and employers
like Wolverine might well conclude that the simpler, less generous
route is the preferable one.
These considerations persuade us that § 825.700(a) effects an
impermissible alteration of the statutory framework and cannot be
within the Secretary's power to issue regulations "necessary to
carry out" the Act under § 2654. In so holding we do not decide
whether the notice and designation requirements are themselves
valid or whether other means of enforcing them might be consistent
with the statute. Whatever the bounds of the Secretary's discretion
on this matter, they were exceeded here. The FMLA guaranteed
Ragsdale 12-not 42-weeks of leave in 1996.
The judgment of the Court of Appeals is affirmed.
It is so ordered.
JUSTICE O'CONNOR, with whom JUSTICE SOUTER, JUSTICE GINSBURG,
and JUSTICE BREYER join, dissenting.
The Court today holds that the Family and Medical Leave Act of
1993 (FMLA or Act), 29 U. S. C. § 2601
et seq. (1994 ed. and
Supp. V), clearly precludes the Secretary of Labor from adopting a
rule requiring an employer to give an em-
97
ployee notice that leave is FMLA qualifying before the leave may
be counted against the employer's 12-week obligation. Because I
believe the Secretary is justified in requiring such individualized
notice and because I think that nothing in the Act constrains the
Secretary's ability to secure compliance with that requirement by
refusing to count the leave against the employer's statutory
obligation, I respectfully dissent.
I
I begin with the question the Court set aside, see
ante,
at 88, whether the Secretary was justified in requiring
individualized notice at all. The FMLA gives the Secretary the
notice and comment rulemaking authority to "prescribe such
regulations as are necessary to carry out" the Act. 29 U. S. C. §
2654 (1994 ed.). In light of this explicit congressional delegation
of rulemaking authority, we must uphold the Secretary's regulations
unless they are "arbitrary, capricious, or manifestly contrary to
the statute."
Chevron U. S.
A. Inc. v.
Natural
Resources Defense Council, Inc., 467 U. S. 837, 844 (1984).
The Secretary has reasonably determined that individualized
notice is necessary to implement the FMLA's provisions. According
to the Secretary, to fulfill the FMLA's purposes, employees need to
be aware 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"). Although the Act requires that each employer
post a general notice of FMLA rights, 29 U. S. C. § 2619(a), the
provision of individualized notice provides additional assurance
that employees taking leave are aware of their rights under the
Act. Individualized notice reminds employees of the existence of
the Act and its protections at the very moment they become
relevant. See also 29 CFR § 825.301(b)(1) (2001) (notice must also
include information about various FMLA rights and obligations).
98
Perhaps more importantly, individualized notice indicates to
employees that the Act applies to them specifically. To trigger
employers' FMLA obligations, employees need not explicitly assert
their rights under the Act; they must only inform their employers
of their reasons for seeking leave. See § 825.208(a)(2). They may
not be aware that their leave is protected under the FMLA. For many
employees, the individualized notice required by the Secretary may
therefore be their first opportunity to learn that their leave is
in fact protected by the FMLA. This not only assists employees in
enforcing their entitlement to 12 weeks of leave, but also helps
them take advantage of their other rights under the Act (such as
their right to take intermittent leave, 29 U. S. C. § 2612(b)(1),
or to substitute accrued paid leave, § 2612(b)(2)), and facilitates
their enforcement of the employer's other obligations (such as the
obligation to continue health insurance coverage during FMLA leave,
§ 2614(c)(1), and the obligation to restore the employee to a
position upon return from leave, § 2614(a)).
Individualized notice also informs employees whether the
employer plans to provide FMLA and employer-sponsored leave
consecutively or concurrently. This can facilitate leave planning,
allowing employees to organize their health treatments or family
obligations around the total amount of leave they will ultimately
be provided.
Given these reasons, the Secretary's decision to require
individualized notice is not arbitrary and capricious. Respondent
does not disagree, instead arguing that, whether or not these
reasons are valid, requiring individualized notice is contrary to
the Act. Because the Act explicitly requires other sorts of notice,
such as the requirement that the employer post a general notice, §
2619(a), and requirements that an employee notify the employer of
the need for or reasons for FMLA leave, §§ 2612(e)(1), 2613,
respondent argues that Congress intended that the Secretary not
enact any other notice requirements.
99
The Act, however, provides no indication that its notice
provisions are intended to be exclusive. Nor does it make sense for
them to be so. Different notice requirements serve different
functions. The requirement that employees notify their employers of
their reasons for leave, for instance, informs employers that their
obligations have been triggered and allows them to use the
certification mechanisms provided in the Act. § 2613. The
requirement that employees give advance notice when leave is
foreseeable, § 2612(e)(1), facilitates employer planning. That the
Act provides for notice to further these objectives indicates
nothing about whether the Secretary may permissibly use the same
tool to further different ends.
Even the provision that may seem most similar, the general
notice requirement, § 2619(a), serves a significantly different
purpose than the Secretary's requirement. Although both inform
employees of their rights under the Act, the general notice
requirement is particularly useful to employees who might otherwise
never approach their employer with a leave request, while the
individualized notice requirement is targeted at employees after
they have informed the employer of their request for leave.
Moreover, even if the purposes of both sorts of notice were
identical, it is not at all clear that, by providing for one sort
of notice to further these objectives, Congress intended to
preclude the Secretary from bolstering this purpose with an
additional notice requirement. I therefore conclude that nothing in
the Act precludes the Secretary from accomplishing her goals
through a requirement of individualized notice.
II
Also at issue before the Court is whether the Secretary may
secure compliance with the individualized notice requirement by
providing that leave will not count against the employer's 12-week
obligation unless the employer fulfills this requirement. The Court
concludes that this means
100
of securing compliance is inconsistent with the cause of action
the Act provides when employers "interfere with, restrain, or deny
the exercise of or the attempt to exercise, any right provided
under this subchapter." 29 U. S. C. § 2615. The Court appears to
see two different kinds of conflict. At times, the Court seems to
suggest that, insofar as the purpose of the individualized notice
requirement is to enable the employee to enforce the Act's specific
protections (such as the right to be reinstated at the end of the
leave period), the Act restricts employees to bringing § 2615
actions to redress violations of these protections and not the
notice requirement itself. See
ante, at 91 (The Secretary's
penalty provision "transformed the company's failure to give notice
... into an actionable violation of § 2615"). Under that section,
employees bear the burden of proving the violation, and their
recovery is limited to whatever damages they can show they have
suffered because of the employer's violation. § 2617 (1994 ed. and
Supp. V).
If this is in fact the Court's view, it would effectively
eviscerate the individualized notice requirement. Under such a
scheme, an employer could feel no obligation to provide
individualized notice, only an obligation to refrain from otherwise
violating the Act's other provisions. This would seriously impede
the Secretary's goals. While the fear of litigation under § 2615
might go some way toward deterring employers from, for instance,
failing to reinstate employees who have taken leave or
discontinuing their health insurance while they are on leave, it
would do so less effectively than if employees were explicitly
informed that their leave was FMLA qualifying at the moment it was
taken. More importantly, the potential for § 2615 liability would
do nothing to further some of the Secretary's other goals, such as
making employees aware that the range of options provided by the
FMLA is available to them. Without individualized notice, for
instance, employees may not be made aware that they have the option
of requesting intermittent
101
leave, § 2612(b)(1), or the option of asking the employer to
substitute accrued paid vacation or sick leave for unpaid FMLA
leave, § 2612(b)(2). An employer may only be liable under § 2615
for denying these options if the employee knows enough to request
them. A rule that would restrict FMLA remedies to violations of §
2615 based on denials of other statutorily protected rights would
thus be equivalent to denying the Secretary the power to enforce an
individualized notice requirement at all. Because I believe the
individualized notice requirement is justified, and because the
Secretary's power to create such a requirement must also include a
power to enforce it in some way, this extreme view of the Act's
remedial scheme should be rejected.
At other times, however, the Court suggests a less extreme
view-that the Secretary may be allowed to require individualized
notice, but that the remedy for failing to give such notice must
also lie under § 2615, requiring the employee to prove harm from
the employer's failure to notify. See
ante, at 91
(suggesting that the appropriate rule is one "involving a
fact-specific inquiry into what steps the employee would have taken
had the employer given the required notice"). This was the approach
adopted by the Court of Appeals, allowing recovery when an
"employer's failure to give notice ... interfere[s] with or
[denies] an employee's substantive FMLA rights."
218 F.3d
933, 939 (CA82000).
But there is no reason to restrict the Secretary's remedy to §
2615 actions. The Secretary is charged with adopting regulations
that are "necessary to carry out" the Act. § 2654. This includes
the power to craft appropriate remedies for regulatory violations.
In
Mourning v.
Family Publications Service, Inc.,
411 U. S. 356
(1973), where the Federal Reserve Board was empowered to "prescribe
regulations to carry out the purposes of" the Truth in Lending Act,
15 U. S. C. § 1604, this Court deferred to its choice of remedies,
asserting that "[w]e have consistently held
102
that 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." 411 U. S., at 371-372.
Just as the fact that the Act provides for certain sorts of
notice does not preclude the Secretary from providing for other
sorts, the fact that the Act provides for certain remedies does not
tie the hands of the Secretary to provide for others. The Court's
argument to the contrary seems to be based on something like the
maxim
expressio unius est exclusio alterius-that Congress'
decision to provide for one remedy indicates that it did not intend
for the Secretary to have authority to create any others. Because
of the deference given to agencies on matters about which the
statutes they administer are silent,
Chevron, 467 U. S., at
843, however,
expressio unius ought to have somewhat reduced
force in this context. See
Texas Rural Legal Aid, Inc. v.
Legal Servs. Corp., 940 F.2d
685, 694
(CADC 1991). For example, in
Mourning,
this Court deferred to the agency's decision to impose a set fine
on lenders who violated a regulation, rejecting the argument that,
because the Truth in Lending Act provided for one sort of remedy,
the agency lacked authority to impose any other sort of penalty.
Although the penalty was set in an amount equal to the minimum fine
set forth in the statute, it clearly went beyond the statute's
remedial scheme, which required that damages be set in an amount
related to the lender's finance charge. Cf.
ante, at 92. In
so holding, we stated:
"[T]he objective sought in delegating rulemaking authority to an
agency is to relieve Congress of the impossible burden of drafting
a code explicitly covering every conceivable future problem.
Congress cannot then be required to tailor civil penalty provisions
so as to deal precisely with each step which the agency thereafter
finds necessary." 411 U. S., at 376.
103
Moreover, the Act itself provides some remedies that fall
outside the framework of 29 U. S. C. § 2615-for instance, the fine
for failure to post a general notice of FMLA rights, § 2619(b).
This confirms that § 2615 is not intended to be the exclusive
remedy for violations of the Act or its implementing regulations.
Respondent conceded at oral argument that the Secretary could
secure compliance with the individual notice requirement through
establishment of a fine, a remedy that goes beyond § 2615. Tr. of
Oral Arg. 28. If the Secretary may enforce her regulations with a
fine, what in the Act precludes her from enforcing them as
appropriate through a range of remedies, such as treble damages,
cease and desist orders punishable by contempt, or, in this case,
additional leave?
The Court further claims that, even if the Secretary has the
power to craft her own remedy for violation of the regulation, the
particular remedy she has chosen is unreasonable. See
ante,
at 92-93. The Court does not take issue with the reasonableness of
a categorical remedy, one that is not necessarily tailored to the
individual loss of each litigant. See
Mourning, supra, at
377 (approving of such "prophylactic" rules). The Court's argument
is instead based on its assertion that the categorical remedy the
Secretary has chosen is too harsh. In the Court's judgment, 12
weeks of additional leave is too great a punishment because few
employees will have actually suffered this much harm from the
employer's failure to give individualized notice. See
ante,
at 93.
We are bound, however, to defer to the Secretary's judgment of
the likely harms of lack of notice so long as it is reasonable. I
believe that it is. The Secretary has determined that a variety of
purposes will be served through individualized notice, including
facilitating employee planning, and enabling enforcement of the
Act's protections and use of its various options by making
employees aware that their leave is FMLA qualifying at the moment
they take it. For those employees who ultimately bring suit for
denial
104
of notice, it is difficult to quantify their damages
retrospectively-it requires knowing not only what options an
employee would have been likely to take had notice been given, but
also the extent to which that employee's ability to plan leave was
compromised. Moreover, an employer's failure to give individualized
notice may itself cause some employees (unaware that their leave is
FMLA qualifying) not to bring suit at all. I therefore see no
reason to doubt the Secretary's judgment that 12 additional weeks
of leave is an appropriate penalty for failing to provide
individualized notice.
The Court further suggests that the Secretary's remedy is
contrary to the statute in two other ways. First, it claims that
the penalty would exceed the FMLA's guarantee of 12 weeks of leave
under §§ 2612(a)(1) and (d)(l). See
ante, at 93-94. But
nothing requires an employer to provide more than 12 weeks of
leave-an employer may avoid this penalty by following the
regulation. The penalty the Secretary has chosen no more extends an
employer's obligations under the Act than would any fine or other
remedy for a violation of those obligations. Nor, as the Court
notes, would a longer penalty violate this aspect of the Act. See
ante, at 94. To the extent that an even lengthier penalty
would be inappropriate, it would be because it is unreasonable, not
because it is contrary to the Act's 12-week allotment.
Moreover, providing this notice is not at all onerous.
In most situations, notice will require nothing more than
informing the employee of what the employer already knows: that the
leave is FMLA qualifying. The employer will eventually have to make
this designation to comply with the Act's recordkeeping
requirements. 29 U. S. C. § 2616(b). At most, the regulation moves
up the time of this designation. When an employer is unsure at the
time the leave begins whether it qualifies, the regulations allow
an interim designation followed by later confirmation. 29 CFR
105
§ 825.208(e)(2) (2001). This is hardly the "high price" of which
the Court complains. See
ante, at 96.
Second, the Court claims that the penalty would discourage
employers from voluntarily providing more leave than the FMLA
requires, contrary to the Act's assertion that "[n]othing in this
Act ... shall be construed to discourage employers from adopting or
retaining [more generous] leave policies," § 2653. See
ante,
at 95. This section sets out a general interpretive principle,
however, and should not be construed as removing from the Secretary
the power to craft any regulation that might have even a small
discouraging effect, no matter how otherwise important. Moreover,
because of the ease with which an employer may meet its obligation
to provide individualized notice, this effect will be minimal.
For these reasons, I would reverse the judgment of the Court of
Appeals and remand the case for appropriate proceedings.
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