Taylor v. Progress Energy, Inc.

Before DUNCAN, MICHAEL and Judges, Circuit PAYNE, and Robert E. United State District Judge for the Eastern District of Virginia, sitting by designation.

Opinion reinstated published opinion. Judge MICHAEL wrote the majority opinion, in which Judge joined. PAYNE April Dawson, ARGUED: Gordon Daw- Judge wrote a dissenting DUNCAN son, Dawson, P.A., Dawson & Graham, opinion. Carolina, North Appellant. for Zebulon Anderson, Dyer Smith, Anderson, Blount, OPINION Dorsett, L.L.P., & Jernigan, Mitchell Ra- MICHAEL, Circuit Judge: Carolina, leigh, North for Appellee. How- The central issue in appeal, now ard Radzely, Marc United Depart- States before us on rehearing, is meaning Labor, ment of Solicitor, Office of the 825.220(d) (section § 29 C.F.R. 220(d)), a DC, Washington, Chao, for Elaine Secre- regulation implementing Family and Labor, tary of Amicus Supporting Appel- (FMLA Medical Leave Act of Act), lee. ON BRIEF: Elliot, M. Robert J. 29 U.S.C. 2601 et seq. regulation Elliot, Griffin Morgan, Pishko, Morgan, “Employees waive, reads: cannot nor P.A., Winston-Salem, Carolina, North for employers induce employees waive, National Employment Lawyers Associa- their rights under FMLA.” our vacated tion and North Carolina Academy of Trial opinion we held prohib- Lawyers, Supporting Amici Appellant; its both the prospective and retrospective Tirona, Marissa M. waiver of any Employ- right National unless the waiver has prior ment Lawyers approval (NELA), Association of the De- San partment of Labor or a Taylor court. Francisco, California, for National Em- Progress Energy, I), Inc. (Taylor 415 F.3d ployment Lawyers Association, Amicus (4th Cir.2005), vacated, 04- No. Supporting Appellant. Bokat, Stephen A. 1525, 2006 U.S.App. (4th LEXIS 15744 Conrad, Robin S. Robert J. Costagliola, 14, 2006). Cir. (the June The losing party National Litigation Center, Inc., Chamber defendant) in Taylor I petition filed a for Washington, DC, for The Chamber of rehearing banc, en and the Secretary of Commerce of the United States of Amer- (the DOL) Labor filed an amicus brief in ica; Reesman, Ann Elizabeth McGuiness, support of petition. The DOL disa- Williams, L.L.P., Norris & Washington, greed with interpretation our of section DC, Equal for Employment Advisory 220(d), and granted we panel rehearing to Council Society for Human Resource consider the DOL’s contrary interpreta- Management, Amici Supporting Appellee. tion. The reargued, case was this time Mandel, Steven J. Solicitor, Associate Paul with agency participating. The DOL Frieden, L. Counsel for Appellate Litiga- contends that section only bars tion, Lynn McIntosh, S. United States De- prospective waiver of FMLA rights. After partment Labor, Solicitor, Office of the we remain reconsideration convinced that DC, Washington, Chao, for Elaine Secre- plain language pre- tary Labor, Amicus Supporting Appel- cludes both prospective and retrospec- lee. tive waiver all FMLA rights, including (or claim) employee’s right include an to take past of action right unpaid the Act. therefore reinstate a certain leave violation of amount medical I. opinion year our each to reinstatement following such leave. 29 U.S.C.

I. 2612(a)(1)(D), 2614(a)(1). §§ Proscriptive agency’s interpretation of its An employee’s not to include “controlling plain unless own against be discriminated or retaliated regu with the ly or inconsistent erroneous exercising substantive FMLA Robbins, Auer v. U.S. lation.” 2615(a)(2). em- The remedial is an 117 S.Ct. 137 L.Ed.2d action,” ployee’s “[r]ight “right (internal quotation marks citation claim, bring an action” or recover [] “to omitted). demonstrate, the As we will damages from equitable or relief’ [obtain] 220(d) interpretation of section is DOL’s employer an that violates the Act. Id. regulation. with the inconsistent (a)(4). 2617(a)(2), §§ regulation, The FMLA,” “rights under there- specifying A. rights fore refers to all under the regulation “Employ- the states: Again, to or including right bring the an action waive, employers in- nor ees cannot claim for a violation of the Act. waive, rights to their un- employees duce reading regula- This is confirmed 825.220(d). § der 29 C.F.R. The FMLA.” 2615(a)(1) § relationship tion’s to of the I that in we erred DOL contends 2615(a)(1) it “un- statute. Section makes 220(d) by to failing section interpreting with, any employer lawful to interfere In its amicus “rights.” focus on the word restrain, deny the exercise of or argued the DOL that the word brief to us exercise, attempt any right provided to Later, claims. does not include “rights” added). (emphasis under [the FMLA].” argu- this substantially undercut DOL others) regulation implements (among in an amicus filed in the East- ment brief that statutory provision, making this clear Pennsylvania. Dougher- ern District employer an cannot “induce Trac., ty No. 05- v. TEVA Pharms. USA rights under FMLA” be- waive[] their 2336, 2007 WL 2007 U.S. Dist. employ- cause that would interfere with (E.D.Pa. 9, 2007), Apr. LEXIS exercise, of, attempt ee’s exercise sue,” that “right DOL conceded 825.220(d). § 29 C.F.R. rights. is, claim, is a “right to assert a 2615(a)(1) prohibits employer Because FMLA” cannot be under the waived un- “any right provided with interference regulation. under the Brief prospectively 2617(a)(2)’s FMLA],” including der [the Secretary Amicus Curiae at Labor as action, phrase, regulation’s Dougherty, n. 2007 WL FMLA,” to the “rights also refers under (Dougherty LEXIS 27200 Ami- U.S. Dist. Br.). action or statutory right claim. We will consider DOL’s cus momentarily, shifting arguments but first 220(d)’s “rights” use of the word Section 220(d) explain why the section we will refer of action or claim is to a phrase plainly in- “rights under FMLA” usage. common consistent with the FMLA. ex- cludes claims under O’Neil, Brooklyn Bank v. Sav. planation simple. is 697, 705, 89 L.Ed. 1296 65 S.Ct. Fair Labor (stating employee’s that an categories There three (FLSA) liquidated FMLA,” substantive, Act claim Standards “rights pro “statutory that cannot damages right” a Substantive scriptive, remedial. not be waived in a agreement); pretation would undermine purpose (8th ed.2004) Dictionary Black’s Law the FMLA and section and turn the (defining “legal right” as capacity “[t]he of FMLA’s substantive empty into asserting legally a recognized claim pronouncements. unenforceable against act”). one duty with correlative The DOL acknowledged problem reasons, 220(d)’s For all of these amicus later-filed in Dougherty, brief prohibition on the waiver of includes rejected where it Faris’s determination prohibition on the waiver of claims. applies only to substan- now turn to tive specifics Dougherty Amicus Br. at 4 n. DOL’s evolving argument. There, In its amicus the DOL recognized that brief to us the agency points (or out claim) that “the “right to sue” assert a is also a only refers to the waiver of “right under the FMLA" that cannot be ‘rights’ and makes no mention of waived prospectively.1 Id. The DOL thus the settlement or release of claims.” previous abandoned its position that sec- Thus, DOL Amicus Br. at 4. prohibit does the waiver of starts out with the assertion that section any claim. According to the DOL’s most 220(d) “regulates only prospective recent interpretation, cannot waiver of rights, retrospec- prospectively waive claims for future viola- tive settlement of FMLA claims.” Id. But FMLA, tions of the but she can waive the DOL then seeks to scope narrow claims for past violations. The relevant regulation even further adopting distinction for the DOL is therefore be- holding WPC-I, Faris v. Williams tween prospective and retrospective waiv- Inc., (5th Cir.2003). 332 F.3d 316 See ers, not rights between and claims as it DOL Amicus Br. at 6 (noting “Depart- argued in its amicus brief before this ment’s plain and reading” [Fans’s] of sec- court. 220(d)); tion id. at 4-5 (endorsing district There is nothing in the text of sec conclusion],” court’s “correct[] which is that permits a distinction be Faris’s, identical to as to the meaning of tween prospective 220(d)). retrospective waiv Faris held regu- that the ers. regulation plainly lation states prohibits only the prospective waiver “[e]mployees cannot FMLA’s waive their rights. rights substantive ... F.3d at 322. under 825.220(d). FMLA.” 29 C.F.R. As pointed I, we out in Taylor the word endorsing Faris holding, “waive” has both prospective a and retro DOL an interpretation advanced of the spective connotation. F.3d at 370. regulation that would allow employee an Courts, including Court, the Supreme fre waive prospectively her proscriptive and quently use the word “waive” to refer remedial rights under Thus, the FMLA. on or post-dispute retrospective her day job first release on an employee could (1) See, prospectively of claims. e.g., waive her Oubre v. proscriptive right to Entergy Operations, Inc., be from free employer retaliation U.S. for 426-27, her attempts to exercise rights 139 L.Ed.2d 849 right (1998) (“An her to sue for employer’s an employee may not waive an grant refusal to FMLA leave. This inter- ADEA claim unless the waiver or release 1. The DOL right characterizes the to sue as a right. characterized as a remedial Neverthe- proscriptive right. Dougherty less, Amicus Br. agree we that the "right to sue is a at 4 n. 6. The to sue for violations of the under the FMLA.” 2617(a)(2), see 29 U.S.C. is better (or (inter- added, does the FMLA “Nowhere [statutory] requirements.”) satisfies omitted); Brooklyn Sav. an em- aggrieved mandate that regulation) quotations nal (stating Bank, 65 S.Ct. 895 proscriptive 324 U.S. her must exercise ployee claim[ ] could not “waive employee an FMLA claim.” Id. bring employer for against damages” liquidated with, conclusion— begin Dougherty’s To FLSA); past violations Jefferson ability bring [or decision] [an that “the (8th Inc., Vickers, Cir. 102 F.3d right” but not claim” is “a kind of FMLA] 1996) can condi- employer that an (stating ignores “right a the FMLA” — em- on an benefits tion certain retirement explicitly text. The FMLA FMLA’s claims”); employment “waiver ployee’s bring an action” “right makes the Inc., F.3d Sybase, Allen v. Act. a under the claim for a violation Cir.2006) (10th (noting that (a)(4). 2617(a)(2), §§ 29 U.S.C. they “in which a release form signed Moreover, confuses the deci- Dougherty against they had any claims waived with waiver to exercise has sion word “waive” Because the company”). connotation, prevent does not rights. retrospective waiver not to exercise retrospective deciding from applies employee employee claims. An denied her FMLA could, decide example, FMLA leave B. bring a claim for the viola- initially not to re- to consider the urges us any The DOL not waive employee This does tion. in the Eastern decision Dougherty cent reconsider and she could rights because 2007 WL Pennsylvania. District time. bring a claim at later decide to Dist. LEXIS However, signs who a release court, reasoning developed There, on the does more than agreement or settlement own, sought result reached the on its sue; she right her to decide not to exercise that section The court held DOL. the entirely. right that While relinquishes 220(d) retrospective prohibit does not 220(d) employ- prevent does not section a because of claim waiver or settlement right not to exercise deciding from ee not a bring a claim” is decision to “the sue, waiving or prevent her from it does *6, 2007 FMLA. Id. at under the right. that relinquishing 27200, The rea- at *23. Dist. LEXIS U.S. reasoning persuaded are not holding does not with- behind this soning Dougherty. analysis. stand close 220(d) that section court first stated C. FMLA’s “substan- prohibits waivers reading that its contends The DOL leave) (i.e. and its FMLA protections tive with “is consistent section (i.e. retal- right to sue for ones proscriptive 2 disfavoring prospec policy well-accepted iation).” *6, LEX- Dist. at 2007 U.S. Id. encouraging rights], but [of tive waivers however, concluded, 27200, *24. It at IS claims, employment law.” settlement permissible are retrospective waivers This statement Br. at 5. DOL Amicus (say- a claim bring the “decision because in em exception important overlooks your you going are exercise ing that favor policy general law to the ployment sue) separate right is not a claims. settlement ing post-dispute It original). (emphasis the FMLA.” *6, 1165068, DOL, U.S. Dist. court, at 2007 categor- WL Dougherty like the 2. The 27200, *21. right. at proscriptive LEXIS a to sue as izes The settlement or waiver of claims is not ed in 3, 1993 U.S.C.C.A.N. 7. The permitted “it when would legis- FMLA, thwart the following model, the FLSA pro- policy lative which employment [the law] vides a “minimum protection” floor of designed was to effectuate.” Brooklyn employees by guaranteeing that a mini- Bank, 704, Sav. at 324 U.S. 65 S.Ct. 895. mum family amount of and medical leave will be annually available to each covered example, FLSA, For under the a labor employee. Id. at FLSA, 18. As with the law, judicial standards there is a prohibi- private settlements of FMLA claims un- against unsupervised waiver or dermine Congress’s objective of imposing Schulte, settlement claims. D.A. See uniform minimum standards. Because the Inc. v. Gangi, 114-16, requirements increase the cost of (1946). S.Ct. 90 L.Ed. 1114 In the labor, employers would have an FLSA, incentive Congress, among things, other pre- to deny FMLA if they benefits could set- wage scribes minimum to foster the tle violation claims for less than the cost “minimum standard of living necessary for of complying with Further, health, statute. efficiency, general well-being employers settling 202(a). claims at a discount workers.” 29 Any U.S.C. gain would competitive wage advantage over gave employers complying less with statutory than the minimum FMLA’s would minimum I, standards. Congress’s objective frustrate See imposing F.3d at 375. uniform minimum To avoid pay requirements. problems, these Barrentine v. follows Freight Arkansas-Best the FLSA Sys., model Inc., prohibits U.S. waiver of all employers All L.Ed.2d 641 (stating provid- held to waivers of ing the minimum specified, FLSA and claims leave nullify would without option congressional deny purpose buy it and imposing out at nation- claims a later wide minimum date. of employment). standards Moreover, allowing below-minimum pay The DOL fails in attempt to analo- through settlement permit discounts would gize the FMLA to Title VII Age and the an employer to evade the FLSA and gain Discrimination in Employment Act an unfair competitive advantage. (ADEA), under which the retrospective Bank, Brooklyn Sav. U.S. 65 waiver of claims is allowed. begin with, To S.Ct. 895. neither Title VII nor the ADEA has

The reasons for prohibition implementing regulation, pri- on like section 220(d), vate settlement of that prohibits FLSA apply claims the waiver of all equal with rights force to FMLA under the claims. Con- statute.3 Furthermore, gress explains in the legislative FMLA’s Title VII and the ADEA are not labor history that the Act squarely “fits within standards laws Rather, like the FMLA. the tradition of the labor standards laws Title VII and the ADEA were enacted to it,” that ... preceded such as the FLSA outlaw discrimination against specific and Occupational Safety and Health classes provide and redress 103-3, Act. S.Rep. (1993), No. at 5 reprint- injuries for caused discrimination. See 3. Such a possible would not be spect to that statute. See General Elec. Co. v. Gilbert, under either Title 125, VII or the Equal 141, ADEA. The 401, 97 S.Ct. 50 Employment Commission, Opportunity (1976); 2000e-12(a). L.Ed.2d 343 42 U.S.C. agency charged ADEA, with the administration and part, for its specifically authorizes VII, enforcement of Title authority lacks “knowing voluntary” and retrospective binding issue regulations substantive with re- 626(f)(1). waiver of claims. See 29 U.S.C. Prods., implementing regulations, FMLA U.S. er Film v. Landgraf USI 1483, concerns ex- acknowledged L.Ed.2d 229 254, DOL 114 S.Ct. these of Com- (1994). further the U.S. Chamber pressed settlements Private discrimina- corporations regarding a cost on by imposing merce and several purposes compliance. encourages rights’ provisions” that “the ‘no waiver of tion respect to the 220(d). be said with to the Final same cannot Preamble section cheap- that are FMLA, settlements Family where and Implementing the Regulations non- encourage would compliance Fed.Reg. er than Act of Medical Leave Act’s undermining the thereby 1995). compliance, (Jan. repre- These minimum standards imposing purpose ex- of business “recommended sentatives short, leave. In family and medical and releases of waivers plicit allowance provide ADEA do not and the Title VII of FMLA settlement [the] with connection the FMLA. model for best settlement package of a severance part claims as and by analo- as much has indicated Congress (as and ADEA under Title VII allowed FLSA, under to the the FMLA gizing claims, response example).” is of claims settlement private which the “given it careful that had explained DOL 2617(b); §§ 29 U.S.C. prohibited. this sec- to the comments on consideration (1993), 103-3, at re- Rep. also S. see 220(d) ... conclud- [section ] (stating in 1993 printed U.S.C.C.A.N. against employees prohibitions ed scheme “enforcement that the FMLA’s induc- employers waiving their of the scheme on the enforcement modeled consti- their ing employees to waive II, FLSA”). Indeed, in part as we discuss public policy under tute sound to the the FMLA the DOL itself likened stan- labor the case other as is also promulgated when it FLSA By FLSA.” Id. such as the dards statutes all waiver of prohibited suggestion rejecting business’s waivers permit regulation be modified with the settle- connection and releases II. claims, made ment of interpretation present The DOL’s 220(d) to it intended for section clear that with inconsistent is also of section waiver of retrospective prohibit regula it intended what the DOL said claims. it was promul at the time tion to mean actually made says now it The DOL in agency’s to an do defer gated. com- claims response to the no reading is if “an alternative terpretation representatives. the business ment from Secre by ... indications compelled DOL, decision According to the our regula at the time tary’s intent the De- “incorrectly interpreted Taylor I Thomas promulgation.” tion’s Jefferson retrospective as to the silence partment’s Shalala, 504, 512, 114 U.S. Univ. pream- in FMLA claims the (cita L.Ed.2d 405 an indication as regulations final ble to the omitted). Tay out in pointed As we prohibited settlements that such being final I, regulation was when the lor 220(d).” Br. at 9. Amicus DOL section and ized, considered DOL specifically the it calls to take what asks us The DOL would amendments that rejected proposed it did not an indication that silence “as ad interpretation now permitted the have fall- as [retrospective] settlements perceive F.3d 370- DOL. See 415 at vanced regulation.” scope of ing within Major “Summary of Com In the 71. It did re- was not silent. Id. The DOL to preamble in the published ments” into take response must 220(d) spond and oth- and final version section the comment. The account comment could ceived medical treatment a week after he been clearer: represen- have business was fired was not eligible for FMLA an tatives asked for amendment to the leave). response does not imply that proposed regulation that explicitly would accepts early who retire- allow “waivers and releases in connection may ment waive her right of action for claims,” is, with settlement of FMLA that past violations, for that would past claims for Fed.Reg. violations. 60 at beyond extend the end of employment. response The DOL’s was likewise For these reasons we adhere to our agency clear. The it carefully said had Taylor I assessment of the DOL’s intent comment, considered the indicating that it 220(d)’s at the time of section promul- fully understood what pro- the comment gation: “By rejecting sugges- business’s posed. Id. The rejected DOL then tion that waivers and releases should be proposal with its conclusion prohibi- “that in allowed connection with post-dispute against employees tions waiving their claims, settlement of FMLA rights employers inducing 825.220(d) made clear that was never to waive their pub- constitute sound under, only intended to have policy prospective applica- lic isas also the result, case under other tion.” 415 labor standards F.3d at 371. statutes As we do such as clarity the FLSA.” Id. The not defer the completely to inter- different rejection firmness of the DOL’s pretation DOL comment is underscored agency’s advances in this case. See Thomas Jeffer- adopting statement that it was the same Univ., son 512 U.S. at 114 S.Ct. 2381. no-waiver-of-rights policy applies course, FLSA, FLSA. Under the III. the unsupervised settlement of claims is In Taylor I we relied on the congres- not allowed. sionally recognized similarities between argues The DOL also that its statement the FLSA to conclude in preamble that “an employee on section “must be construed allow required FMLA leave be give up the waiver or release of FMLA claims with remaining his or her FMLA leave entitle- prior DOL or court approval,” as is the early-out ment to take an offer from the case respect with to FLSA claims. 415 employer,” Fed.Reg. made F.3d at 374. The DOL asserts that “the clear that would not affect requirement of Department or su- court in releases connection with severance pervision” will create added on burdens packages. disagree. This statement the DOL and the courts and “will harm only Industry addressed the ERISA Com- employees by delaying resolution of their mittee’s concern that an employee who cases.” DOL Amicus Br. at 15. areWe early takes retirement while on FMLA confident that both the DOL and the leave might continue to rights, assert leave courts will work diligently to deal with such as the continuing group these in a prompt cases and efficient man- coverage. health response DOL’s ner. The DOL already system has a simply clarifies that the employee does not place for reviewing FMLA claim settle- waive any FMLA circum- cases, ments administrative and it has employee’s stance because the had even experience broader FMLA leave supervis- ends with the cessation of the employment ing FLSA relationship. settlements. The Brohm v. will See courts Inc., (6th JH Props., 517, only 149 supervising F.3d 523 be settlements in court Cir.1998) (holding that employee who re- brought actions pursuant FMLA, to the

463 v. appeal. Taylor responsibil- argument in that this not believe and we do I), Progress Energy, (Taylor Inc. 415 F.3d an undue burden.4 ity will create (4th vacated, 364, Cir.2005), 04- 369 No. IV. (4th U.SApp. LEXIS 15744 that, reaffirm our conclusion We 2006). reached our deci- Cir. June approval, or court prior DOL without guided by established rules of statuto- sion 825.220(d) prospective the § bars C.F.R. for the ry appropriate proce- construction waiver or release retrospective as it then posture dural case existed. including the rights under majority clearly thought- See id. The for a action or claim bring fully analysis here. recounts reinstate the Act. We therefore violation of unexpect- of this was appeal The course Taylor Progress in v. opinion prior our diverted, however, when the DOL edly Cir.2005). (4th Inc., Energy, 415 F.3d I in analysis Taylor rejected the IT SO ORDERED. IS supporting Progress brief belated amicus en Energy’s rehearing banc. petition DUNCAN, Judge, dissenting: Circuit Secretary at 4 Amicus Br. for of Labor (the Act Leave Family and Medical The prohibit not to (interpreting “FMLA”) aggrieved provides action). After such the waiver of causes action,” 29 U.S.C. “[r]ight of with a in question the case was interposition, 2617(a)(2), bring an “right ... § Robbins, v. necessarily recast. See Auer 2617(a)(4), action,” against an em- id. 452, 461, 117 prohib- any of the acts ployer commits who (1997) (recharacterizing the L.Ed.2d Department by the statute. ited case, after the issue in the Secre- central (the “DOL”), im- regulations in its Labor brief, an amicus as tary of filed Labor FMLA, has declared: plementing Secretary’s interpretation of whether the waive, nor em- “Employees cannot “plainly erroneous own regulations his waive, then- employees to induce ployers (inter- regulation” with the or inconsistent FMLA.” 29 C.F.R. under omitted)). Therefore, quotations nal 825.220(d). majority’s The crux longer us is no whether issue before regulation, reasoning is that “[t]he I Taylor adopted that we interpretation FMLA,’ ... refers ‘rights under specifying it is reasonable, rather whether but was FMLA,” Majority all regula- language of the compelled including particular Op. tion. bring an “right “Might of action” (4) (em- 2617(a)(2), §in

action” described it is to conclude that I feel constrained added). phasis legal in the few words not. There freighted than ubiquitous and lexicon more is, standing majority’s position “right.” See United States the term Indeed, we alone, eminently reasonable. (C.C.M.D.Tenn. Patrick, 338, 348 F. hearing oral after first defensibly so held I interpretation appears have sec- We note that argued agency for a differ- and notes connection under consideration in post-decision interpretation in its amicus ent rulemaking responsibilities under the with its request— information brief. The notice's Shortly argument the DOL after oral FMLA. telegraphs the language that request for couched that includes a a notice issued input interpretation 220(d). Request DOL's current public on section comment —"seeks placed on be a limitation should Family on whether Medical on the for Information past ability employees to settle their Fed.Reg. 69509- Act of Leave (Dec. 1, 2006). our FMLAclaims.” The notice forth sets 1893) (“The ‘rights’ ‘privilege’ tempt words codify its new interpretation have, course, variety a meanings, any surprise makes such unlikely here— according to the connection or in context change in interpretation presents alone they used.”); Wesley which Newcomb separate ground no disregarding Hohfeld, Legal Some Fundamental Con- (in- Department’s present interpretation.” ceptions Applied as in Judicial Reason- omitted)); ternal citations Majority cf. (1913) (“[T]he 16, ing, 23 Yale L.J. 30-31 Op. at n. 4 (noting that the DOL has ‘rights’ term tends to be used indiscrimi- issued notice that it is considering modify- nately given to cover what a case ing regulation codify unambiguously privilege, be a power, immunity, present interpretation). sense; rather than a the strictest Nevertheless, fully I agree that the his- language this looseness of is occasion- tory regulation of the at provides issue ally recognized by the authorities.... model of how proceed not to during the recogniz[e] very must ... [W]e rulemaking process. Majority Op. broad and indiscriminate use of the term ” (internal Furthermore, altered)). timely 461-63. ‘right.’ intervention punctuation The mere fact that the statute creates a before we issued I action,” “[r]ight 2617(a)(2), 29 U.S.C. would have necessity obviated the of an regulation “rights and the refers to under hearing additional appeal, with its FMLA,” 825.220(d), may sug- C.F.R. expenditure judicial attendant and party gest, but does not compel, interpreta- resources. tion that the two uses of the word are addenda, With cautionary these I re- light elasticity coextensive. of the spectfully dissent. “right,”

the term it is not clear to me that “rights under FMLA” on its face sub-

sumes accrued causes of action.

Given the existence of at least some ambiguity

measure of in the regulation’s then, “rights,”

use of the term I cannot but

conclude deference to the in- DOL’s

terpretation Auer, appropriate 461,

519 U.S. at 905. S.Ct. See Chris- America, UNITED STATES 576, tensen v. County, Harris Plaintiff-Appellee, L.Ed.2d 621 v. (“Auer deference is warranted ... when Astley Anthony GRANT, Defendant- the language is ambigu- Appellant. ous.”); Group Rogan, Humanoids (4th Cir.2004). F.3d I am further No. 06-40915. unpersuaded by any suggestion that United Appeals, inconsistencies States Court of interpretation DOL’s over time must lessen Fifth Circuit. level of deference to be pres- accorded its July Home, ent view. Long Island Care at —Coke, U.S.-, Ltd. v. 127 S.Ct. (2007) (“[A]s 168 L.Ed.2d 54 long as

interpretive changes create no unfair sur-

prise Department’s recourse to —and

notice-and-comment rulemaking in an at-

Case Details

Case Name: Taylor v. Progress Energy, Inc.

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Jul 3, 2007

Citation: 493 F.3d 454

Docket Number: 04-1525

Court Abbreviation: 4th Cir.