FMLA miles measured by driving distance

Bellum v. PCE Constructors Inc., 5th Cir., No. 04-60409, April 25, 2005.

An employee was not protected under the Family and Medical Leave Act (FMLA) because his employer did not have at least 50 employees within 75 driving miles of the employee's worksite, the 5th U.S. Circuit Court of Appeals ruled.

The employer, PCE Constructors Inc., was headquartered in Baton Rouge, La., but managed construction projects at customer sites across several southern states. Larry Bellum managed one such project for a PCE customer in Fernwood, Miss.

In late 2000, Bellum took a leave of absence to have open-heart surgery. After a few months, Bellum attempted to return to his job, but was told he was no longer needed and was formally terminated.

Bellum filed suit in Mississippi federal court against PCE, claiming that the FMLA guaranteed him the right to return to his job.

The FMLA applies only to companies that have 50 or more employees working at or within 75 miles of an affected employee's worksite. PCE had only 41 employees at the Fernwood site, with an additional 14 employees working at the Baton Rouge headquarters.

The central issue in this case was whether PCE's headquarters was located within 75 miles of the Fernwood site. If it was, PCE would have the required number of employees to be subject to the FMLA. The "straight line" distance between the Fernwood site and the Baton Rouge headquarters was less than 75 miles. But the driving distance between the two sites using established public roads was greater than 75 miles.

Thus, the only way Bellum could avail himself of the FMLA's protections was if the court adopted the linear approach, not the driving approach. Unfortunately for Bellum, the district court adopted the driving approach, which left PCE with less than the required 50 employees, and the 5th Circuit affirmed that decision.

The court rejected Bellum's argument to strike down a U.S. Department of Labor (DOL) regulation stating that the 75-mile distance was to be measured by surface miles, using surface transportation over public streets.

RELATED ARTICLE: Professional Pointer

The FMLA's coverage threshold is quite a bit higher than those under the federal discrimination laws. Moreover, the FMLA has technical requirements as to which employees are protected, and there is relatively little case law to guide employers in complying with the 12-year-old statute. Furthermore, DOL regulations interpreting and implementing the law have been subject to much scrutiny and attack in the courts. For all these reasons, employers should exercise particular care in developing and applying FMLA policy.

BY DECLAN C. LEONARD, AN ATTORNEY WITH THE LAW FIRM OF ALBO & OBLON IN ARLINGTON, VA.

COPYRIGHT 2005 Society for Human Resource Management
COPYRIGHT 2005 Gale Group