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Thursday, June 24, 2010

As a whole

No deference 

In a case [Duckworth][supra]where the meaning of 'employees' was looked into by the courts the  district court determined that the term "employees" has an inherent "plain meaning." The plain meaning seen by the district court was that "employees" means "current employees." Such a definition excludes prospective employees, and, necessarily, former employees. If, by choosing the word "employees," Congress had manifested an unambiguous intent to exclude Duckworth's claim from the Act's coverage, we would agree with the district court and would be bound to reject the Secretary's interpretation. No deference is due the administrative agency's interpretation if it conflicts with unambiguous language. See Strickland v. Commissioner, Me. Dep't of Human Servs., [1995] USCA1 63; 48 F.3d 12, 16 (1st Cir.1995). Whether the statute is ambiguous is a question of law for the court to decide and it is one which we must review de novo. See id. at 16-17. We think the district court's determination that the term "employees" is unambiguous, always meaning "current employees," is in error for several reasons

Intrinsically Plain Meaning

The Supreme Court reasoned that the word "employee" does not have some "intrinsically plain meaning," id. at 847 n. 4, that is limited "to those having an existing employment relationship with the employer in question," even though that argument may seem plausible "at first blush." Id. at 846. Canvassing various federal statutes, Robinson noted that Congress has not used the term "employee" with precision, but rather has used the term, at various times, to refer to both former and prospective employees. Id. at 846-47; see also NLRB v. Town & Country Elec., Inc., [1995] USSC 94; 516 U.S. 85, 116 S.Ct. 450, 133 L.Ed.2d 371 (1995) (upholding the NLRB's determination that the term "employees" in the National Labor Relations Act (NLRA) applies to prospective employees who were paid union organizers); Passer v. American Chem. Soc'y, [1991] USCADC 302; 935 F.2d 322, 330-31 (D.C.Cir.1991) (term "employees" in Age Discrimination in Employment Act (ADEA) includes former employees). Thus, absent an express "temporal qualifier," such as "current," Robinson, 117 S.Ct. at 846, Congress' use of the word "employees" does not inherently exclude former and prospective employees.Pratt & Whitney argued ,it was stated  that, although the term "employed" could mean both "is employed" or "was employed," see Robinson, 117 S.Ct. at 847 (noting this ambiguity), it cannot mean "will be employed," and so the use of the FLSA definition at least excludes prospective employees. However, the FMLA's use of the FLSA definition of "employee" was plainly meant to incorporate the FLSA's list of exceptions, see 29 U.S.C. § 203(e), not to exclude prospective employees from the FMLA's coverage. Indeed, the FLSA definition of "employee" has been held by one circuit court to apply to prospective employees, see Dunlop v. Carriage Carpet Co., [1977] USCA6 14; 548 F.2d 139 (6th Cir.1977), and has been described by the Supreme Court as "exceedingly broad," Tony & Susan Alamo Found. v. Secretary of Labor, [1985] USSC 99; 471 U.S. 290, 295[1985] USSC 99; , 105 S.Ct. 1953, 85 L.Ed.2d 278 (1985); see also United States v. Rosenwasser, [1945] USSC 9; 323 U.S. 360, 362[1945] USSC 9; , 65 S.Ct. 295, 89 L.Ed. 301 (1945) ("A broader or more comprehensive coverage of employees within the stated categories [in the FLSA] would be difficult to frame.") "Congress' repetition of a well-established term carries the implication that Congress intended the term to be construed in accordance with pre-existing regulatory [and judicial] interpretations." Bragdon v. Abbott, --- U.S. ----[1998] USSC 77; , 118 S.Ct. 2196, 2201-02[1998] USSC 77; , 141 L.Ed.2d 540 (1998); see also Goncalves, 144 F.3d at 132-33 (noting that Congress is presumptively aware of existing judicial or administrative interpretations). Moreover, the legislative history reveals that Congress, at the time it enacted the FMLA, was aware of the breadth of the FLSA definition and purposely chose to adopt that definition. See S.Rep. No. 103-3, at 22 (1993), reprinted in 1993 U.S.C.C.A.N. 3, 25 (noting that "[t]his definition is broadly inclusive"); Bragdon, 118 S.Ct. at 2208 (noting that the legislative history revealed Congress' awareness of the breadth of the definition of "handicap" in the Rehabilitation Act when it chose to include that definition in drafting the ADA).Our reading of other statutory provisions does not eliminate the ambiguity. In providing various readings of statutory terms below, we are most emphatically not ruling on whether the particular readings are correct, only that the variety of possible readings demonstrates ambiguity. And that ambiguity sets the stage for deference to reasonable administrative interpretation. In this context, we address one of Pratt & Whitney's strongest arguments, that Congress has, in some statutes, distinguished "job applicants" from "employees," expressly providing that the statute's protection extends to both. See, e.g., 42 U.S.C. § 12112(b)(1) (providing that, in the ADA, "the term 'discriminate' includes limiting, segregating or classifying a job applicant or employee" in a way that adversely affects a disabled individual's opportunities). Congress could have done so here, under the FMLA, but did not. That Congress could have singled out "job applicants" for express coverage does not mean it clearly intended to exclude job applicants from the FMLA. Indeed, much prior judicial interpretation of analogous statutes could lead Congress to conclude that such a level of precision is not required, or at least that it could, by choosing to use an open-ended term like "employee," entrust that policy choice to the agency. For example, the NLRA does not explicitly include "job applicants" within its definition of "employees," see 29 U.S.C. § 152(3), but the Supreme Court has long held that term to include prospective employees, see Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 185-86, 61 S.Ct. 845, 85 L.Ed. 1271 (1941), and has recently upheld a Board determination that the term applies to prospective employees who were paid union organizers, see Town & Country, 516 U.S. at 87[1995] USSC 94; , 116 S.Ct. 450. In the FMLA, Congress did not provide separate protection for "job applicants" and for "employees." The Supreme Court has repeatedly observed that the word "employee" "is not treated by Congress as a word of art having a definite meaning" that would, for example, exclude prospective or former employees. NLRB v. Hearst Publications, Inc., 322 U.S. 111, 124, 64 S.Ct. 851, 88 L.Ed. 1170 (1944) (internal quotation marks and citation omitted).Consequently, the second stage of the Chevron analysis comes into play: whether the Secretary's reading of the statute is a reasonable one. See Massachusetts v. FDIC, [1996] USCA1 621; 102 F.3d 615, 622 (1st Cir.1996). The statute, read as a whole and in light of its purposes, leads to the conclusion that the Secretary's broad definition of "employees" is reasonable      Go Next Contd.

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