The real question to ask is whether the FMLA is next?
By Valerie Bateman
The Supreme Court’s 8-0 decision in Mt. Lemmon v. Guido should be of no surprise to anyone who has actually read the definition of employer language in the Age Discrimination in Employment Act (ADEA).
The case involved a very simple matter of statutory construction informed by some legislative history analysis. The Mt. Lemmon fire department laid off its two oldest employees when faced with a budget shortfall. When the employees sued, the fire department said the ADEA didn’t cover them because the fire department did not have twenty or more employees. The Supreme Court explained its holding this way:
The question presented: Does the ADEA’s numerosity specification (20 or more employees), applicable to “a person engaged in an industry affecting commerce,” apply as well to state entities (including state political subdivisions)?
We hold, in accord with the United States Court of Appeals for the Ninth Circuit, that §630(b)’s two-sentence delineation, and the expression “also means” at the start of the second sentence, combine to establish separate categories:
persons engaged in an industry affecting commerce with 20 or more employees;
and States or political subdivisions with no attendant numerosity limitation.
“[T]wenty or more employees” is confining language, but the confinement is tied to §630(b)’s first sentence, and does not limit the ADEA’s governance of the employment practices of States and political subdivisions thereof.
While the Supreme Court’s decision is certainly interesting, it’s not terrible shocking. And it’s not really onerous or difficult for local governments to comply with, as simply not discriminating does not require any direct expenditure of revenue.
The real question raised by this opinion, however, for local governments is whether the Supreme Court will follow suit when faced with the question of whether small local governments are covered by the Family and Medical Leave Act, which does actually have much more tangible direct costs in both revenue and productivity.
The good news is that the language in the FMLA defining employers is much different from the ADEA language. But it requires a roadmap to parse through the connecting definitions to get to the conclusion that the FMLA’s numerosity requirement is likely to be upheld.
Here’s my take on such a roadmap:
29 U.S.C.A. § 2611 (FMLA)
- 2611. Definitions
(A) In general
The term “employer”–
(i) means 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;
(I) any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer; and
(II) any successor in interest of an employer;
(iii) includes any “public agency”, as defined in section 203(x) of this title; and
(iv) includes the Government Accountability Office and the Library of Congress.
(B) Public agency
For purposes of subparagraph (A)(iii), a public agency shall be considered to be a person engaged in commerce or in an industry or activity affecting commerce.
29 U.S.C.A. § 203 (FLSA/Wage and Hour)
- 203. Definitions
(d) “Employer” includes any person acting directly or indirectly in the interest of an employer in relation to an employee and includes a public agency, but does not include any labor organization (other than when acting as an employer) or anyone acting in the capacity of officer or agent of such labor organization.
(x) “Public agency” means the Government of the United States; the government of a State or political subdivision thereof; any agency of the United States (including the United States Postal Service and Postal Regulatory Commission), a State, or a political subdivision of a State; or any interstate governmental agency.
Here’s the textual analysis:
- FMLA: Under (A)(i), an employer is “person engaged in commerce or industry affecting comer who employs 50 or more employees . . . .”
- includes any “public agency” as defined in 203(x) (FLSA/Wage and Hour laws)
- (B) says public agency “shall be considered to be a person engaged in commerce under (A)(iii)”
- 203(x): means government of a State or political subdivision thereof . . . .
So, if a public agency for FMLA purposes is a 203(x) State or local government employer under 203(d),
If a public agency is a “person engaged in commerce . . . .” who employs 50 or more employees,
THEN a local government could still argue that is not subject to the FMLA unless it meets the numerosity requirement.
Notably, Supreme Court in Mt. Lemmon v. Guido rejected the fire department’s argument that the ADA should be interpreted like Title VII to have a numerosity limit. In rejecting that argument, the Supreme Court stated:
The better comparator is the FLSA, on which many aspects of the ADEA are based. See 29 U. S. C. §626(b) (ADEA incorporates the “powers, remedies, and procedures” of the FLSA). Like the FLSA, the ADEA ranks States and political subdivisions as “employer[s]” regardless of the number of employees they have.
Note that the FLSA definition is in section 203 has no numerosity limitation, but when you combine 203(x) with the FMLA definition of “employer,” then you can see why the FMLA question might well be answered differently from the ADEA question even if both have roots in the FLSA.