Scalia v. State

• Decision Date: 15 January 2021
• Docket Number: No. 19-35824,19-35824
• Citation: 985 F.3d 742
• Parties: Eugene SCALIA, Secretary of Labor, United States Department of Labor, Plaintiff-Appellee, v. State of Alaska, DEPARTMENT OF TRANSPORTATION AND PUBLIC FACILITIES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

985 F.3d 742

Eugene SCALIA, Secretary of Labor, United States Department of Labor, Plaintiff-Appellee,

v.State of Alaska, DEPARTMENT OF TRANSPORTATION AND PUBLIC FACILITIES, Defendant-Appellant.

No. 19-35824

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 4, 2020 Anchorage, Alaska

Filed January 15, 2021

WATFORD, Circuit Judge:

The Family and Medical Leave Act of 1993 (FMLA) grants eligible employees "a total of 12 workweeks of leave during any 12-month period" to attend to qualifying family and medical needs. 29 U.S.C. § 2612(a)(1). We are asked to decide what the term "workweeks" means as applied to employees who work a rotational schedule of seven days on followed by seven days off.

I

The issue arises in a suit brought by the Secretary of Labor against the State of Alaska's Department of Transportation and Public Facilities. The Secretary contends that Alaska is miscalculating the amount of FMLA leave that certain employees of the Alaska Marine Highway System (AMHS) are entitled to take. Before turning to the specifics of the Secretary's contention, we must distinguish between two types of employees and two types of FMLA leave.

As to types of employees, the AMHS employs what we will call "traditional" employees and "rotational" employees. Simplified somewhat, traditional employees are those who work a regular schedule of 40 hours each week, typically resulting in five days on followed by two days off. Rotational employees, by contrast, work a regular schedule of seven days on followed by seven days off—that is, 80 hours one week and zero hours the next. Both types of employees generally work the same number of hours over the course of a year, and both are generally paid the same amount.¹

As to types of FMLA leave, an employee may take either "continuous" leave or "intermittent" leave. Continuous leave, as the name suggests, is leave taken in one continuous block of time, up to the maximum of 12 consecutive workweeks. Continuous leave is the default form of leave. It may be taken for any of the qualifying family and medical needs covered by the statute: to bond with a new child, to care for a family member with a serious health condition, or to attend to the employee's own serious health condition. § 2612(a)(1).

Intermittent leave is the exception. Unless the employer agrees otherwise, it may be taken only to attend to a serious health condition of the employee or a family member, and then only when medically necessary. § 2612(b)(1). Intermittent leave is defined as "leave taken in separate periods of time due to a single illness or injury, rather than for one continuous period of time." 29 C.F.R. § 825.102. It can be taken in full-week increments of several weeks or in partial-week increments of as little as one day or one hour. Id. ; see also § 825.205(a)(1). Either way, the FMLA provides that the taking of intermittent leave "shall not result in a reduction in the total amount of leave to which the employee is entitled under subsection (a) beyond the amount of leave actually taken." 29 U.S.C. § 2612(b)(1) ; see also 29 C.F.R. § 825.205(b)(1).²

Against that backdrop, we can turn to the specifics of the Secretary's allegations in this case. The Secretary does not challenge Alaska's method of calculating FMLA leave with respect to traditional employees or with respect to employees (traditional or rotational) who take intermittent leave. But as to rotational employees who take continuous leave, the Secretary contends that Alaska is violating the FMLA. In Alaska's view, a rotational employee working a "one week on, one week off" schedule who takes 12 workweeks of continuous leave must return to work 12 weeks later because both the "on" and "off" weeks count against the employee's FMLA leave entitlement. In the Secretary's view, the employee should return to work 24 weeks later, because a rotational employee's off weeks cannot be counted as "workweeks of leave" under § 2612(a)(1). As the Secretary puts it in his brief, only weeks in which an employee was otherwise scheduled to work can count as workweeks of leave, for "there is no work to take leave from when an employee is not scheduled to work."

On cross-motions for summary judgment, the district court agreed with the Secretary. The court held that the term "workweek" refers to "time that an employee is actually required to be at work." Since rotational employees are not required to be at work during their off weeks, the court concluded that those weeks cannot be counted against an employee's FMLA leave entitlement. Following that ruling, the parties stipulated to entry of a permanent injunction enjoining Alaska "from counting weeks during which AMHS rotational employees are not scheduled to work as FMLA leave." The State of Alaska appeals.

II

The parties agree that the outcome of this appeal turns on what the term "workweek" means. Unfortunately, Congress did not define the term when it enacted the FMLA. But Congress had previously used the same term in a different employee-rights statute enacted in 1938: the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq. That Act generally prohibits employers from employing any covered employee "for a workweek longer than forty hours unless such employee receives compensation for his employment ... at a rate not less than one and one-half times the regular rate at which he is employed." § 207(a)(1) (emphasis added). In regulations first promulgated in the 1960s, the Department of Labor construed the term "workweek" to mean, essentially, a fixed period of seven consecutive days:

An employee's workweek is a fixed and regularly recurring period of 168 hours—seven consecutive 24-hour periods. It need not coincide with the calendar week but may begin on any day and at any hour of the day. For purposes of computing pay due under the Fair Labor Standards Act, a single workweek may be established for a plant or other establishment as a whole or different workweeks may be established for different employees or groups of employees. Once the beginning time of an employee's workweek is established, it remains fixed regardless of the schedule of hours worked by him.

29 C.F.R. § 778.105 (emphasis added). The italicized sentence makes clear that a "workweek" does not revolve around an individual employee's own work schedule. It is, instead, simply a week-long period, designated in advance by the employer, during which the employer is in operation.

In our view, the first question to ask is whether Congress intended to adopt this definition of "workweek" when it granted employees "a total of 12 workweeks of leave" under the FMLA. We think it did. The term had acquired an established meaning under the FLSA decades before Congress enacted the FMLA, and Congress deliberately chose to use that term as opposed to the unmodified term "week." Both the FMLA and the FLSA address the same general subject matter, in that both statutes afford employees certain minimum protections in the workplace. In both statutes, Congress used the term "workweek" for the same purpose: to provide a fixed, pre-established period of time against which an employee's entitlement to statutory benefits can be measured, while at the same time affording employers flexibility to establish that period on a basis other than a Monday-through-Sunday calendar week. And, as the Secretary acknowledges in his brief, in both statutes Congress used the term "to prevent an employer from manipulating an employee's workweek to deny the employee his full statutory entitlement."

Given the similarity in general subject matter addressed by the two statutes, and the similar function the term "workweek" serves in both, it seems reasonable to infer that Congress intended to borrow the term's established meaning under the FLSA when it enacted the FMLA. See Hall v. Hall , ––– U.S. ––––, 138 S. Ct. 1118, 1128, 200 L.Ed.2d 399 (2018) ("if a word is obviously transplanted from another legal source, whether the common law or other legislation, it brings the old soil with it") (quoting Felix Frankfurter, Some Reflections on the Reading of Statutes , 47 Colum. L. Rev. 527, 537 (1947)).

The inference that Congress intended to import the meaning of "workweek" from the FLSA is strengthened when we examine Title II of the FMLA—the portion of the Act dealing with civil service employees. See Family and Medical Leave Act of 1993, Pub. L. No. 103-3, § 201, 107 Stat. 6, 19–23 (codified at 5 U.S.C. §§ 6381 – 6387 ). Title II grants civil service employees the same leave entitlement conferred by § 2612(a)(1), except that the relevant provision states, "an employee shall be entitled to a total of 12 administrative workweeks of leave during any 12-month period." 5 U.S.C. § 6382(a)(1) (emphasis added). The use of the phrase "administrative workweeks" is significant because civil service regulations had long defined the term as "a period of 7 consecutive calendar days designated in advance by the head of an agency." 5 C.F.R. § 610.102(a) (1993). That definition, of course, is "essentially equivalent" to the regulatory definition of the term "workweek" under the FLSA. Sanford v. Weinberger , 752 F.2d 636, 637 n.3 (Fed. Cir. 1985). Like the regulatory definition of "workweek," the definition of "administrative workweek" does not focus on an individual employee's own work schedule. Had Congress intended to import that concept into the leave entitlement conferred by § 6382, it would have used a different defined term: "regularly scheduled administrative workweek," which the civil service regulations define as "the period within an administrative workweek ... within which the employee is regularly scheduled to work ." 5 C.F.R. § 610.102(b) (emphasis added).

Congress's use of the term "administrative workweek" confirms that it did not conceive of "workweeks of leave" for civil service employees as consisting exclusively of weeks in which an employee was scheduled to work, as the Secretary urges....