In 1993, President Clinton signed into law the Family and Medical Leave Act (FMLA). For a brief summary of this legislation, fast forward to 3:54 and watch the first twenty seconds or so of the following video:
The FMLA makes it "unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right" under the FMLA, included those mentioned by President Clinton in the video above. 29 U.S.C. § 2615(a)(1) (emphasis added). As a federal court in Oklahoma explained earlier this week, the FMLA provides two rights of action against employers: one for “interference,” and one for “retaliation.” Jeffers v. Redlands Cmty. College Bd. of Regents, No. CIV-11-1237- HE, 2012 U.S. Dist. LEXIS 5562, at *5 n.3 (D. Okla. Jan. 18, 2012).
The FMLA defines the term “employer” as meaning
any person engaged in commerce or in any industry or activity affecting commerce who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year
29 U.S.C. § 2611(4)(A)(i). Subsection (A)(iii) notes that the term “employer” includes “public agencies.” The litigants in this case conceded that the definition of "employers" with regard to private employers covered employees as well. Does this, by logical extension, mean that employees of public agencies, like their counterparts in the private sector, may also be sued under the FMLA?
As the court in Jeffers recently explained, a circuit split has emerged over this question: "There is a split among the courts of appeal on this issue. Compare Mitchell v. Chapman, 343 F.3d 811, 832 (6th Cir. 2003), and Wascura v. Carver, 169 F.3d 683, 687 (11th Cir. 1999) (holding individual public employees are not 'employers' under the FMLA), with Modica v. Taylor, 465 F.3d 174, 184-86 (5th Cir. 2006), and Darby v. Bratch, 287 F.3d 673, 680-81 (8th Cir. 2002) (holding the opposite)." Jeffers, 2012 U.S. Dist. LEXIS 5562, at *5–6.
The court continued,
The Tenth Circuit has not yet squarely addressed it.The court concludes the interpretation by the Fifth and Eighth Circuits is more persuasive as to the reach of the statute, principally because the statute's definition of "employer" is inclusive and subsections (ii) and (iii) should be read together. Therefore, plaintiff has stated an FMLA claim against defendant Andrade.
Id. at *7.