The Family and Medical Leave Act authorizes employees to file a complaint against their employer with the Department of Labor, which can then file an enforcement action. The FMLA also permits employees to file suit directly against their employer in court. But what happens if an employee does both? That was the question posed in a recent decision by the Eleventh Circuit Court of Appeals, Spakes v. Broward County Sheriff's Office (11th Cir. January 31, 2011).
The employer argued that the FMLA's implementing regulations require an employee to choose either a DOL complaint or a private lawsuit, and that an earlier-filed complaint with the DOL bars a subsequent private lawsuit. Specifically, the employer relied on 29 CFR 825.400(a), which provides:
(a) The employee has the choice of: (1) Filing, or having another person file on his or her behalf, a complaint with the Secretary of Labor, or (2) Filing a private lawsuit pursuant to section 107 of FMLA.
This language seems pretty clear: the phrase "the employee has the choice of..." seems to require, well, that the employee choose one or the other. On its face, then, the employer's argument seems to have merit.
The problem with the employer's argument, according to the court, was that the regulations are inconsistent with the statute. The FMLA itself provides that an employee's right to bring an action is terminated only upon the filing of a complaint by DOL. That did not happen here, so the court held that the employee had the right to bring a private lawsuit. "[W]here the statute provides a right to a cause of action and lists the limitations, regulations cannot contravene the statute by terminating the right where the statute did not so authorize," wrote the court. In other words, as any first year law student can tell you, the statute trumps the regulations. And in this case, that means the employer loses.