Eugene Scalia v. State of Alaska ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EUGENE SCALIA, Secretary of Labor, No. 19-35824
United States Department of Labor,
Plaintiff-Appellee, D.C. No.
1:17-cv-00009-
v. HRH
STATE OF ALASKA, Department of
Transportation and Public Facilities, OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the District of Alaska
H. Russel Holland, District Judge, Presiding
Argued and Submitted June 4, 2020
Anchorage, Alaska
Filed January 15, 2021
Before: Morgan Christen, Paul J. Watford, and
Bridget S. Bade, Circuit Judges.
Opinion by Judge Watford;
Dissent by Judge Christen
2 SCALIA V. STATE OF ALASKA
SUMMARY *
Family and Medical Leave Act of 1993
The panel reversed the district court’s summary
judgment in favor of the Secretary of Labor in the
Secretary’s action alleging that the State of Alaska
miscalculated the amount of Family and Medical Leave Act
(“FMLA”) leave that certain employees of the Alaska
Marine Highway System (“AMHS”) were entitled to take.
The FMLA grants eligible employees “a total of 12
workweeks of leave during any 12-month period” to attend
to qualifying family and medical needs. 29 U.S.C.
§ 2612(a)(1). At issue is the meaning of “workweek” as
applied to employees who work a rotational schedule of
seven days on followed by seven days off. AMHS employs
“traditional” employees – those who work a regular 40 hour
week with typically five days on followed by two days off,
and “rotational” employees – those who work a regular
schedule of seven days on followed by seven days off. Both
types of employees generally work the same number of
hours per year, and are generally paid the same amount. As
to types of FMLA leave, an employee may take either
“continuous” leave or “intermittent” leave. The Secretary
contends that Alaska violated the FMLA as to rotational
employees who take continuous leave.
The panel held that Congress intended to adopt the
definition of “workweek” contained in Fair Labor Standards
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
SCALIA V. STATE OF ALASKA 3
Act regulation 29 C.F.R. § 778.105 when it granted
employees “a total of 12 workweeks of leave” under the
FMLA. This definition does not revolve around an
individual employee’s own work schedule, but is simply a
week-long period, designated in advance by the employer,
during which the employer is in operation. The panel held
that the Secretary’s reading of “workweek” conflicted with
Congress’s understanding of how FMLA leave would be
calculated. The panel further held that when a rotational
employee takes continuous leave, both his on and off weeks
count as “workweeks of leave” under 29 U.S.C.
§ 2612(a)(1). Thus, Alaska may insist that rotational
employees who take 12 workweeks of continuous leave
return to work 12 weeks later.
The panel held that it need not defer to the Secretary’s
contrary interpretation of the statute. The panel held further
that the Secretary was not entitled to deference under
Skidmore v. Swift & Co., 323 U.S. 134 (1944). Specifically,
the panel disagreed with the Secretary’s argument that
dictionary definitions of the term “workweek” supported his
reading of the statute. The panel rejected the Secretary’s
assertion that his interpretation of “workweek” was
supported by regulations issued by the Department of Labor
in 1995, two years after the FMLA’s passage. The panel
rejected the remaining challenges by the Secretary.
The panel held that when an employee working a “one
week on, one week off” schedule takes continuous leave, an
employer may count both the on and off weeks against the
employee’s FMLA leave entitlement. Alaska’s method of
calculating rotational employees’ continuous leave therefore
did not violate the statute. The panel remanded with
instructions to enter summary judgment in Alaska’s favor.
4 SCALIA V. STATE OF ALASKA
Judge Christen dissented because she would give
deference to the Secretary’s interpretation and affirm the
district court’s summary judgment order She would hold
that the district court gave “workweek” its plain and ordinary
meaning, and correctly ruled that the State’s interpretation
violated FMLA because it denied rotational employees the
leave guaranteed by Congress: up to twelve workweeks of
unpaid leave from work.
COUNSEL
Katherine Demarest (argued), Assistant Attorney General,
Department of Law, Anchorage, Alaska, for Defendant-
Appellant.
Rachel Goldberg (argued), Counsel for Appellate Litigation;
Sarah K. Marcus, Deputy Associate Solicitor; Jennifer S.
Brand, Associate Solicitor; Kate O’Scannlain, Solicitor of
Labor; Office of the Solicitor, United States Department of
Labor, Washington, D.C.; for Plaintiffs-Appellees.
SCALIA V. STATE OF ALASKA 5
OPINION
WATFORD, Circuit Judge:
The Family and Medical Leave Act of 1993 (FMLA)
grants eligible employees “a total of 12 workweeks of leave
during any 12-month period” to attend to qualifying family
and medical needs. 29 U.S.C. § 2612(a)(1). We are asked
to decide what the term “workweeks” means as applied to
employees who work a rotational schedule of seven days on
followed by seven days off.
I
The issue arises in a suit brought by the Secretary of
Labor against the State of Alaska’s Department of
Transportation and Public Facilities. The Secretary contends
that Alaska is miscalculating the amount of FMLA leave that
certain employees of the Alaska Marine Highway System
(AMHS) are entitled to take. Before turning to the specifics
of the Secretary’s contention, we must distinguish between
two types of employees and two types of FMLA leave.
As to types of employees, the AMHS employs what we
will call “traditional” employees and “rotational”
employees. Simplified somewhat, traditional employees are
those who work a regular schedule of 40 hours each week,
typically resulting in five days on followed by two days off.
Rotational employees, by contrast, work a regular schedule
of seven days on followed by seven days off—that is,
80 hours one week and zero hours the next. Both types of
employees generally work the same number of hours over
6 SCALIA V. STATE OF ALASKA
the course of a year, and both are generally paid the same
amount. 1
As to types of FMLA leave, an employee may take either
“continuous” leave or “intermittent” leave. Continuous
leave, as the name suggests, is leave taken in one continuous
block of time, up to the maximum of 12 consecutive
workweeks. Continuous leave is the default form of leave.
It may be taken for any of the qualifying family and medical
needs covered by the statute: to bond with a new child, to
care for a family member with a serious health condition, or
to attend to the employee’s own serious health condition.
§ 2612(a)(1).
Intermittent leave is the exception. Unless the employer
agrees otherwise, it may be taken only to attend to a serious
health condition of the employee or a family member, and
then only when medically necessary. § 2612(b)(1).
Intermittent leave is defined as “leave taken in separate
periods of time due to a single illness or injury, rather than
for one continuous period of time.” 29 C.F.R. § 825.102. It
can be taken in full-week increments of several weeks or in
partial-week increments of as little as one day or one hour.
Id.; see also § 825.205(a)(1). Either way, the FMLA
provides that the taking of intermittent leave “shall not result
in a reduction in the total amount of leave to which the
employee is entitled under subsection (a) beyond the amount
1
The situation is more complicated than this, but the details are
immaterial. For example, some rotational employees work two weeks
on followed by two weeks off, or even four weeks on followed by four
weeks off. The analysis is no different with respect to these employees,
so for simplicity’s sake we will assume that all rotational employees
work a “one week on, one week off” schedule.
SCALIA V. STATE OF ALASKA 7
of leave actually taken.” 29 U.S.C. § 2612(b)(1); see also
29 C.F.R. § 825.205(b)(1). 2
Against that backdrop, we can turn to the specifics of the
Secretary’s allegations in this case. The Secretary does not
challenge Alaska’s method of calculating FMLA leave with
respect to traditional employees or with respect to employees
(traditional or rotational) who take intermittent leave. But as
to rotational employees who take continuous leave, the
Secretary contends that Alaska is violating the FMLA. In
Alaska’s view, a rotational employee working a “one week
on, one week off” schedule who takes 12 workweeks of
continuous leave must return to work 12 weeks later because
both the “on” and “off” weeks count against the employee’s
FMLA leave entitlement. In the Secretary’s view, the
employee should return to work 24 weeks later, because a
rotational employee’s off weeks cannot be counted as
“workweeks of leave” under § 2612(a)(1). As the Secretary
puts it in his brief, only weeks in which an employee was
otherwise scheduled to work can count as workweeks of
leave, for “there is no work to take leave from when an
employee is not scheduled to work.”
On cross-motions for summary judgment, the district
court agreed with the Secretary. The court held that the term
“workweek” refers to “time that an employee is actually
required to be at work.” Since rotational employees are not
required to be at work during their off weeks, the court
concluded that those weeks cannot be counted against an
employee’s FMLA leave entitlement. Following that ruling,
2
There is also a third type of leave in which an employee works “a
reduced leave schedule,” that is, fewer than “the usual number of hours
per workweek, or hours per workday.” 29 U.S.C. §§ 2611(9),
2612(b)(1). It is not directly implicated here.
8 SCALIA V. STATE OF ALASKA
the parties stipulated to entry of a permanent injunction
enjoining Alaska “from counting weeks during which
AMHS rotational employees are not scheduled to work as
FMLA leave.” The State of Alaska appeals.
II
The parties agree that the outcome of this appeal turns on
what the term “workweek” means. Unfortunately, Congress
did not define the term when it enacted the FMLA. But
Congress had previously used the same term in a different
employee-rights statute enacted in 1938: the Fair Labor
Standards Act (FLSA), 29 U.S.C. § 201 et seq. That Act
generally prohibits employers from employing any covered
employee “for a workweek longer than forty hours unless
such employee receives compensation for his employment
. . . at a rate not less than one and one-half times the regular
rate at which he is employed.” § 207(a)(1) (emphasis
added). In regulations first promulgated in the 1960s, the
Department of Labor construed the term “workweek” to
mean, essentially, a fixed period of seven consecutive days:
An employee’s workweek is a fixed and
regularly recurring period of 168 hours—
seven consecutive 24-hour periods. It need
not coincide with the calendar week but may
begin on any day and at any hour of the day.
For purposes of computing pay due under the
Fair Labor Standards Act, a single workweek
may be established for a plant or other
establishment as a whole or different
workweeks may be established for different
employees or groups of employees. Once the
beginning time of an employee’s workweek is
established, it remains fixed regardless of the
schedule of hours worked by him.
SCALIA V. STATE OF ALASKA 9
29 C.F.R. § 778.105 (emphasis added). The italicized
sentence makes clear that a “workweek” does not revolve
around an individual employee’s own work schedule. It is,
instead, simply a week-long period, designated in advance
by the employer, during which the employer is in operation.
In our view, the first question to ask is whether Congress
intended to adopt this definition of “workweek” when it
granted employees “a total of 12 workweeks of leave” under
the FMLA. We think it did. The term had acquired an
established meaning under the FLSA decades before
Congress enacted the FMLA, and Congress deliberately
chose to use that term as opposed to the unmodified term
“week.” Both the FMLA and the FLSA address the same
general subject matter, in that both statutes afford employees
certain minimum protections in the workplace. In both
statutes, Congress used the term “workweek” for the same
purpose: to provide a fixed, pre-established period of time
against which an employee’s entitlement to statutory
benefits can be measured, while at the same time affording
employers flexibility to establish that period on a basis other
than a Monday-through-Sunday calendar week. And, as the
Secretary acknowledges in his brief, in both statutes
Congress used the term “to prevent an employer from
manipulating an employee’s workweek to deny the
employee his full statutory entitlement.”
Given the similarity in general subject matter addressed
by the two statutes, and the similar function the term
“workweek” serves in both, it seems reasonable to infer that
Congress intended to borrow the term’s established meaning
under the FLSA when it enacted the FMLA. See Hall v.
Hall, 138 S. Ct. 1118, 1128 (2018) (“if a word is obviously
transplanted from another legal source, whether the common
law or other legislation, it brings the old soil with it”)
10 SCALIA V. STATE OF ALASKA
(quoting Felix Frankfurter, Some Reflections on the Reading
of Statutes, 47 Colum. L. Rev. 527, 537 (1947)).
The inference that Congress intended to import the
meaning of “workweek” from the FLSA is strengthened
when we examine Title II of the FMLA—the portion of the
Act dealing with civil service employees. See Family and
Medical Leave Act of 1993, Pub. L. No. 103-3, § 201,
107 Stat. 6, 19–23 (codified at 5 U.S.C. §§ 6381–6387).
Title II grants civil service employees the same leave
entitlement conferred by § 2612(a)(1), except that the
relevant provision states, “an employee shall be entitled to a
total of 12 administrative workweeks of leave during any 12-
month period.” 5 U.S.C. § 6382(a)(1) (emphasis added).
The use of the phrase “administrative workweeks” is
significant because civil service regulations had long defined
the term as “a period of 7 consecutive calendar days
designated in advance by the head of an agency.” 5 C.F.R.
§ 610.102(a) (1993). That definition, of course, is
“essentially equivalent” to the regulatory definition of the
term “workweek” under the FLSA. Sanford v. Weinberger,
752 F.2d 636, 637 n.3 (Fed. Cir. 1985). Like the regulatory
definition of “workweek,” the definition of “administrative
workweek” does not focus on an individual employee’s own
work schedule. Had Congress intended to import that
concept into the leave entitlement conferred by § 6382, it
would have used a different defined term: “regularly
scheduled administrative workweek,” which the civil service
regulations define as “the period within an administrative
workweek . . . within which the employee is regularly
scheduled to work.” 5 C.F.R. § 610.102(b) (emphasis
added).
Congress’s use of the term “administrative workweek”
confirms that it did not conceive of “workweeks of leave”
SCALIA V. STATE OF ALASKA 11
for civil service employees as consisting exclusively of
weeks in which an employee was scheduled to work, as the
Secretary urges. And nothing in the text or structure of the
FMLA indicates that Congress intended the leave
entitlement granted to civil service employees to differ in
scope from the entitlement granted to all other employees.
The FMLA’s purpose and legislative history further
bolster the conclusion that Congress rejected the Secretary’s
narrow interpretation of the term “workweek.” Congress
enacted the FMLA to establish a minimum standard of leave
that accommodates the competing interests of employers and
employees. 29 U.S.C. § 2601(b); H.R. Rep. No. 103-8, pt.
1, pp. 16–17 (1993). On one hand, the statute encourages
employees to prioritize their family and medical needs
without fear of negative repercussions at work. Thus, when
an employee takes FMLA leave, her employer must
maintain her health benefits and hold her position open until
she returns. 29 U.S.C. §§ 2601(b), 2614. On the other hand,
the statute limits the burdens imposed on the employer.
FMLA leave need not be paid leave, and an employee must
attempt to schedule her leave in a way that minimizes
disruptions to the employer. §§ 2601(b), 2612(c)–(e). The
12-workweek leave entitlement is a prime example of this
carefully calibrated balance. As one House Report noted:
The amount of time available for leave also
reflects a compromise. The leave period was
reduced to 12 weeks in response to concerns
raised by employers who maintained that it
was significantly easier to adjust work
schedules or find temporary replacements
over the shorter time period. While not ideal
from the employees’ perspective, a twelve
week minimum represents a middle ground
12 SCALIA V. STATE OF ALASKA
between the needs of workers and an
employer’s business needs.
H.R. Rep. No. 102-135, pt. 1, p. 37 (1991).
The Secretary’s reading of “workweek” conflicts with
Congress’s understanding of how FMLA leave would be
calculated. To see why, consider application of the statute
in the context of parental leave. When drafting the statute,
Congress heard testimony from multiple child development
experts about the need for parents to form bonds with their
children during the initial stages of child rearing. See, e.g.,
H.R. Rep. No. 103-8, pt. 1, p. 27. Although some of these
experts recommended four to six months of FMLA leave,
Congress settled on “12 weeks”—the minimum time in
which the experts believed these critical bonds could be
formed. H.R. Rep. No. 103-8, pt. 2, p. 12. As noted,
anything longer was considered too burdensome for
employers. H.R. Rep. No. 102-135, pt. 1, p. 37.
If all employees receive a maximum of 12 consecutive
weeks of continuous FMLA leave, the balance struck by
Congress remains intact: Employees receive the time they
need to bond with a new son or daughter, while employers
experience relatively limited disruptions. But if rotational
employees are entitled to 24 consecutive weeks of
continuous FMLA leave, as the Secretary contends, the
compromise Congress enacted falls apart. Employees with
a “one week on, one week off” schedule would receive the
very benefit that Congress declined to provide: six months
to bond with a new son or daughter. And the burden imposed
on employers, particularly with respect to cost, would
increase significantly. Replacing a rotational employee over
a 24-week period would obviously cost the employer twice
as much as replacing such an employee for 12 weeks.
SCALIA V. STATE OF ALASKA 13
The Secretary’s reading of the statute would also create
a seemingly unjustified disparity in treatment between
traditional and rotational employees. For example, in the
hypothetical just considered, a traditional employee who
takes FMLA leave upon the birth of his child must return to
work 12 weeks later. But a rotational employee who takes
parental leave at the same time need not return for
24 weeks—despite the fact that both employees over the
course of that period would typically work the same overall
number of hours and receive the same pay. The Secretary
does not explain why Congress would have privileged
rotational employees over traditional employees merely
because over a two-week period a rotational employee’s
80 hours of work are allocated over seven days, while a
traditional employee’s 80 hours of work are allocated over
ten. If Congress had viewed rotational employees as
differently situated due to their non-traditional schedules, it
presumably would have said so by carving out a special rule
for them in the statute—just as it did for other categories of
employees, notably servicemembers and school workers.
See 29 U.S.C. §§ 2612(a)(3), 2618.
For these reasons, we conclude that the term
“workweek” in § 2612(a)(1) has the same meaning it carries
under the FLSA. It is a fixed, pre-established period of
seven consecutive days in which the employer is operating.
Under that reading of the term, when a rotational employee
takes continuous leave, both his on and off weeks count as
“workweeks of leave” under § 2612(a)(1). Thus, Alaska
may insist that rotational employees who take 12 workweeks
of continuous leave return to work 12 weeks later.
III
We have explained above why Alaska’s reading of the
statutory term “workweek” is most faithful to the FMLA’s
14 SCALIA V. STATE OF ALASKA
text, structure, and purpose. The only remaining question is
whether we must nevertheless defer to the Secretary’s
contrary interpretation of the statute. The answer is no.
The Department of Labor has not promulgated
regulations that define the term “workweek” or that adopt
special rules governing rotational employees. As a result, no
deference is owed to the Secretary’s interpretation under
Chevron U.S.A. Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984).
The Secretary argues that his interpretation is entitled to
deference under Skidmore v. Swift & Co., 323 U.S. 134(1944). Under Skidmore, the weight to be accorded the
Secretary’s interpretation “depend[s] upon the thoroughness
evident in its consideration, the validity of its reasoning, its
consistency with earlier and later pronouncements, and all
those factors which give it power to persuade, if lacking
power to control.” Id. at 140. We have given careful
consideration to each of these factors, but none of them
persuades us that the Secretary’s reading of the statute is the
better one. We address below the main points the Secretary
raises in arguing for Skidmore deference.
First, we do not agree with the Secretary’s argument that
dictionary definitions of the term “workweek” support his
reading of the statute. The primary dictionary cited by the
Secretary defines “workweek” to mean “the hours or days of
work in a calendar week.” Webster’s Third New
International Dictionary 2635 (1993). That definition does
not tell us whether a rotational employee’s off weeks count
as workweeks because it does not specify whether the frame
of reference is the employer’s work schedule or the
employee’s—it could be either one. But in any event, for the
reasons given above, we think Congress chose to borrow the
definition of “workweek” developed under the FLSA,
SCALIA V. STATE OF ALASKA 15
making contemporaneous dictionary definitions of the term
irrelevant to the question before us.
Second, the Secretary asserts that his interpretation of
“workweek” is supported by regulations issued by the
Department of Labor in 1995, two years after the FMLA’s
passage. The Secretary points in particular to the provision
now codified at 29 C.F.R § 825.200(h), which provides basic
guidelines for calculating the amount of FMLA leave an
employee takes. As relevant here, § 825.200(h) states:
[I]f for some reason the employer’s business
activity has temporarily ceased and
employees generally are not expected to
report for work for one or more weeks (e.g.,
a school closing two weeks for the
Christmas/New Year holiday or the summer
vacation or an employer closing the plant for
retooling or repairs), the days the employer’s
activities have ceased do not count against
the employee’s FMLA leave entitlement.
According to the Secretary, this provision shows that
FMLA leave does not include weeks in which an employee
is not expected to report for work. We disagree. By its
terms, § 825.200(h) pertains only to circumstances in which
the employer’s operations have temporarily ceased. It says
nothing about weeks in which the employer is operating,
which is the situation at issue here.
Third, in advancing a broader interpretation of
§ 825.200(h), the Secretary relies on two statements in the
regulatory preamble, both of which, at first glance, appear to
support the Secretary’s view. When read in context,
however, neither statement stands for the far-reaching
proposition the Secretary suggests.
16 SCALIA V. STATE OF ALASKA
Let’s start with the preamble statement addressing
school employees. In response to the Department of Labor’s
request for public comment, one organization recommended
that “all periods of leave taken by school employees should
count as FMLA leave, including any period of leave that
occurs outside the school term.” 60 Fed. Reg. 2180, 2229
(Jan. 6, 1995). The Department rejected this suggestion and
explained:
An absence taken when the employee would
not otherwise be required to report for duty is
not leave, FMLA or otherwise. For example,
the regulations do not require an employee,
who normally works Monday through
Friday, and is taking intermittent leave, to
have counted as leave the weekend days (i.e.,
Saturday and Sunday). If the employee(s),
absent FMLA, would not have otherwise
been required to take some form of leave to
cover the absence, then the absence is not to
be counted against the employee’s FMLA
leave entitlement. Section 825.200(f) [now
§ 825.200(h)] has been added to the Final
Rule to clarify this issue.
Id. Although the first line of this response is phrased in
broad terms, the full statement illustrates a narrow
proposition—an employee is not on FMLA leave when an
employer is closed for business. If a school is on break for
one or more weeks, those weeks will not count as FMLA
leave. 29 C.F.R. § 825.200(h). Likewise, when school
employees take intermittent leave, weekends will have no
impact on the amount of leave taken, as schools are not open
for business during the weekend. Had the Department of
Labor intended to extend the first line of this statement
SCALIA V. STATE OF ALASKA 17
beyond its immediate context—and thereby create a bright-
line rule applicable even when an employer is operating—it
could easily have incorporated language to that effect in the
final rule. But the text of § 825.200(h) reflects nothing of
the sort.
The other preamble statement on which the Secretary
relies addresses the calculation of intermittent leave. 60 Fed.
Reg. at 2203. Two commenters submitted questions on this
topic, one seeking to clarify that “FMLA leave may not be
charged during a week when work would not otherwise be
available,” and the other asking how to count FMLA leave
when employees “work seven days and then are off for seven
days.” Id. The Department of Labor responded:
An employee’s FMLA leave entitlement may
only be reduced for time which the employee
would otherwise be required to report for
duty, but for the taking of the leave. If the
employee is not scheduled to report for work,
the time period involved may not be counted
as FMLA leave. See § 825.200(f).
Id. The Secretary implies that this statement all but resolves
the question presented in this case. We again disagree. The
statement cites 29 C.F.R. § 825.200(f), which, as noted
above, simply provides that weeks during which an
employer has temporarily ceased operations do not count
against an employee’s FMLA leave entitlement. Even if this
statement was intended to cover weeks in which the
employer is operating, it still lacks the power to persuade.
The statement does not explicitly address continuous
leave—it appears under the heading “Determining the
Amount of Intermittent/Reduced Leave.” And, assuming it
applies to weeks in which the employer is operating, its
18 SCALIA V. STATE OF ALASKA
method of counting full weeks of intermittent leave finds
little support in the statute and regulations.
As explained at the outset, intermittent leave can be
taken in full-week increments or in increments of less than
one week. This distinction, which the preamble statement
overlooks, matters. When an employee takes intermittent
leave for less than a full week, the employer must calculate
the amount of leave taken by comparing the number of hours
or days the employee worked to the number of hours or days
the employee was scheduled to work. Were it otherwise, the
employer could end up reducing the employee’s FMLA
leave entitlement “beyond the amount of leave actually
taken.” 29 U.S.C. § 2612(b)(1); see 29 C.F.R.
§ 825.205(b)(1). But when an employee takes intermittent
leave for a full week, he is on leave for the entire seven-day
period during which the employer is operating, and thus his
specific work schedule is of little relevance. See 29 C.F.R.
§ 825.205(b)(1) (explaining how to calculate intermittent
leave based on an employee’s normal work schedule only
for leave taken in less than full-week increments).
The Secretary’s final claim to Skidmore deference rests
on two opinion letters from the Department of Labor. In the
first letter, the Department defined “workweek” as “the
employee’s usual or normal schedule (hours/days per
week),” and explained that the workweek “is the controlling
factor for determining how much leave an employee is
entitled to use when taking FMLA leave intermittently.”
U.S. Department of Labor, Wage & Hour Division, Opinion
Letter (July 19, 1999). In the second letter, however, the
Department distinguished an “employee’s established 7-day
workweek” of “Sunday through Saturday” from the
employee’s “normal workweek schedule of 34 hours,
Monday through Friday.” U.S. Department of Labor, Wage
SCALIA V. STATE OF ALASKA 19
& Hour Division, Opinion Letter (May 9, 2002) (emphasis
added). The Department then used the employee’s normal
workweek schedule as the basis for calculating intermittent
leave, and described how to account for weeks in which an
employee works a fraction of her scheduled hours. Id.Taken together, these letters merely emphasize the same
point made above: While an employee’s own work schedule
is relevant when calculating intermittent leave taken in less
than full-week increments, it has little bearing in the
continuous leave context.
* * *
When an employee working a “one week on, one week
off” schedule takes continuous leave, an employer may
count both the on and off weeks against the employee’s
FMLA leave entitlement. Alaska’s method of calculating
rotational employees’ continuous leave therefore does not
violate the statute. We reverse the district court’s grant of
summary judgment to the Secretary and remand with
instructions to enter summary judgment in Alaska’s favor.
REVERSED and REMANDED.
CHRISTEN, Circuit Judge, dissenting:
The Family and Medical Leave Act of 1993 (FMLA)
guarantees eligible employees up to twelve workweeks of
unpaid leave to tend to their own serious health conditions,
to care for family members’ serious health conditions, or for
maternity/paternity leave. 29 U.S.C. § 2612(a)(1). The Act
does not define “workweek” and the parties dispute how to
calculate twelve workweeks of leave for employees working
week-on/week-off schedules. The majority imports the Fair
20 SCALIA V. STATE OF ALASKA
Labor Standards Act’s definition and concludes that, as used
in the FMLA, “workweek” “does not revolve around an
individual employee’s own work schedule,” but instead
means a “fixed, pre-established period of seven consecutive
days in which the employer is operating.”
A workweek clearly comprises seven consecutive days,
but by pegging “workweek” to the employer’s schedule
rather than the employee’s schedule, the majority concludes
that any employee who is absent for an FMLA-approved
reason is necessarily on leave if she is caring for a serious
medical condition when the employer is open for business.
This definition of workweek allows the majority to affirm
Alaska’s practice of charging employees working week-
on/week-off schedules with taking leave from work if they
tend to medical conditions on days when their employers are
operating—even if they were scheduled to be off duty.
I respectfully dissent. The district court gave
“workweek” its plain and ordinary meaning, see FDIC v.
Meyer, 510 U.S. 471, 476 (1994), and correctly ruled that the
State’s interpretation violates the FMLA because it denies
rotational employees the leave Congress guaranteed: up to
twelve workweeks of unpaid leave from work. 29 U.S.C.
§ 2612(a)(1).
If “workweek” is considered without regard to the
context provided by the FMLA, one could conclude the term
is ambiguous because this seven-day unit of time could be
viewed as the time the employer is operational or as the time
the employee is scheduled to work. But we do not interpret
statutory terms in a vacuum; and here, the FMLA’s
provisions governing intermittent leave require that
“workweek” means an employee’s regular weekly work
schedule, not the time an employer is open for business.
Separately, our precedent requires that we give deference to
SCALIA V. STATE OF ALASKA 21
the Secretary’s long-standing definition: an FMLA
workweek is a week during which an employee is scheduled
to work. And finally, the definition the majority borrows
from the Fair Labor Standards Act of 1938 (FLSA) lends no
support to the majority’s conclusion because the FLSA’s
forty-hour threshold triggering overtime wages is absolutely
calculated by reference to the employee’s weekly work
schedule.
I
The State of Alaska, Department of Transportation and
Public Facilities operates the Alaska Marine Highway
System (AMHS). The AMHS provides passenger ferry
service throughout Southeast and Southwest Alaska. Some
AMHS employees work traditional Monday-to-Friday
schedules; others work rotational week-on/week-off
schedules. 1 In 2017, the Secretary of Labor filed a complaint
in district court alleging that the State was miscalculating
FMLA leave for certain AMHS employees. The State
allowed its employees to be absent for qualifying reasons for
up to twelve consecutive weeks, regardless of their work
schedules. For employees working week-on/week-off
schedules, twelve consecutive weeks includes six weeks the
employees would be scheduled to work and six weeks they
would not be scheduled to work. The net result was the State
only allowed rotational employees six weeks of leave from
work, and the Secretary alleged the State’s practice violated
the FMLA’s guarantee that eligible employees “shall be
1
I agree with the majority that the outcome of this case does not
depend on which particular type of rotational schedule a given employee
works, and adopt the majority’s convention of assuming that all
rotational employees work week-on/week-off schedules.
22 SCALIA V. STATE OF ALASKA
entitled to a total of 12 workweeks of leave . . . .” 29 U.S.C.
§ 2612(a)(1).
The district court granted summary judgment for the
Secretary. The court reasoned “a plain and sensible reading
of Section 2612(a) would be that a ‘workweek’ is time that
an employee is actually required to be at work.” Using this
definition, the district court concluded the FMLA does not
permit the State to count rotational employees’ “off-weeks”
as FMLA leave. In my view, the district court’s ruling
should be affirmed.
II
I begin with the text of the statute. See, e.g., BedRoc.,
Ltd. v. United States, 541 U.S. 176, 183 (2004) (plurality);
United States v. Havelock, 664 F.3d 1284, 1292 (9th Cir.
2012) (en banc) (“[W]e are not in the business of rewriting
the law, but that of interpreting Congress’s words when it
enacted the statute.”). The FMLA provides that “an eligible
employee shall be entitled to a total of 12 workweeks of
leave during any 12-month period” to care for family
members or recuperate from serious health conditions.
29 U.S.C. § 2612(a)(1). FMLA leave can be taken in
consecutive weeks, or it may be taken intermittently. Id.,(b)(1); see also 29 C.F.R. § 825.205.
Intermittent leave is “leave taken in separate periods of
time due to a single illness or injury.” 29 C.F.R. § 825.102.
The implementing regulation provides as an example “leave
taken several days at a time spread over a period of six
months, such as for chemotherapy.” Id. Employees may
take intermittent leave to care for their own or a family
member’s serious health condition if it is medically
necessary, but unless the employee and the employer agree,
SCALIA V. STATE OF ALASKA 23
employees may not take intermittent FMLA leave for
maternity/paternity purposes. 29 U.S.C. § 2612(b)(1).
The district court gave “workweeks” its plain and
ordinary meaning because the statute does not define the
term. See Meyer, 510 U.S. at 476; Joffe v. Google, Inc.,
746 F.3d 920, 927 (9th Cir. 2013) (observing undefined
terms are given their “ordinary meaning”). At the time
Congress enacted the FMLA, the Oxford English Dictionary
defined a “week” as a “space of seven successive days
beginning with the day traditionally fixed as the first day of
the week.” Oxford English Dictionary (2d ed. 1989); see
Sanford v. MemberWorks, Inc., 625 F.3d 550, 559 (9th Cir.
2010) (explaining the court “may follow the common
practice of consulting dictionaries” to determine a term’s
“ordinary and plain meaning . . . at the time the statute was
adopted” (citing Johnson v. Alijan, 490 F.3d 778, 780 (9th
Cir. 2007))). The 1989 Oxford English Dictionary did not
have a stand-alone definition for “workweek,” but it defined
week “with a prefixed word” as “a week during which some
event takes place” and “a week during which attention is
focused on a particular topic.” Oxford English Dictionary
(2d ed. 1989); see also Workweek, Webster’s Third New
International Dictionary 2635 (1993) (“the hours or days of
work in a calendar week”).
These definitions are in line with the common
understanding of the difference between a “week” and a
“workweek.” A week is any seven-day period; a workweek
is a seven-day period during which work occurs. The district
court focused on Congress’s use of the term “workweeks”
rather than “weeks” when it ruled that “a plain and sensible
reading of Section 2612(a) would be that a ‘workweek’ is
time that an employee is actually required to work.” The
district court explained, “[t]he statute provides that an
24 SCALIA V. STATE OF ALASKA
eligible employee is entitled to twelve workweeks of FMLA
leave each year,” not “twelve weeks of FMLA leave.” The
district court observed that this definition ensures “both
rotational and non-rotational employees would receive the
twelve workweeks of FMLA leave to which they are
entitled.”
The district court’s ruling, that a “workweek” is defined
by the period employees are “actually required to work,” is
supported by the statutory context. Robinson v. Shell Oil
Co., 519 U.S. 337, 341 (1997) (explaining plain meaning is
determined “by reference to the language itself, the specific
context in which that language is used, and the broader
context of the statute as a whole”).
The first contextual clue is the statute’s use of
“workweeks” as the unit of leave guaranteed by the Act: the
FMLA provides “12 workweeks of leave.” 29 U.S.C.
§ 2612(a)(1) (emphasis added). Leave is defined as
“[p]ermission asked for or granted to do something.” Oxford
English Dictionary (2d ed. 1989); see also Black’s Law
Dictionary (6th ed. 1990). As recognized in the preamble to
the FMLA’s implementing regulations promulgated in 1995,
“[a]n absence taken when the employee would not otherwise
be required to report for duty is not leave, FMLA or
otherwise.” The Family and Medical Leave Act of 1993,
60 Fed. Reg. 2180, 2229 (Jan. 6, 1995) (FMLA Preamble).
In other words, absences during weeks in which employees
are not scheduled to work are not “leave” because such
absences do not involve employees missing work they would
otherwise be doing.
The district court’s ruling is also supported by the
FMLA’s intermittent leave provisions. The FMLA
expressly guarantees that “[t]he taking of leave
intermittently . . . shall not result in a reduction in the total
SCALIA V. STATE OF ALASKA 25
amount of leave to which the employee is entitled,” i.e.,
qualifying employees are entitled to leave in an amount
equal to twelve of their regularly scheduled workweeks,
even if they take it in small increments for treatments that
extend for many weeks or months, such as dialysis or
chemotherapy. 29 U.S.C. § 2612(b)(1).
The regulations implementing intermittent leave make
clear that absences when an employee is not scheduled to
work may not be counted when intermittent leave is
calculated.
(b) Calculation of leave.
(1) When an employee takes leave on an
intermittent or reduced leave schedule, only
the amount of leave actually taken may be
counted toward the employee’s leave
entitlement. The actual workweek is the
basis of leave entitlement. . . . An eligible
employee is entitled to up to a total of
12 workweeks of leave, or 26 workweeks in
the case of military caregiver leave, and the
total number of hours contained in those
workweeks is necessarily dependent on the
specific hours the employee would have
worked but for the use of leave.
29 C.F.R. § 825.205(b)(1) (emphasis added). Further
reinforcing the district court’s ruling, the implementing
regulations provide that if an employee’s weekly schedule
permanently changes before the FMLA leave period begins,
the employee’s new weekly work schedule determines her
“workweek.” See id. § 825.205(b)(2) (“If an employer has
made a permanent or long-term change in the employee’s
26 SCALIA V. STATE OF ALASKA
schedule . . . the hours worked under the new schedule are to
be used for making [the intermittent leave] calculation.”).
“Workweek” therefore means the hours an employee would
otherwise be scheduled to work.
These implementing regulations leave no doubt that
“workweek” is defined by employees’ individual work
schedules when leave is taken on an intermittent basis, and
they underscore that when Congress guaranteed
“12 workweeks of leave,” it meant twelve weeks of leave,
not merely twelve weeks’ absence from the workplace.
Despite the FMLA’s express language prohibiting
employers from reducing employees’ leave entitlements
“beyond the amount of leave actually taken,” 29 U.S.C.
§ 2612(b)(1), the majority concludes the State may do just
that when calculating FMLA leave for rotational employees.
Though “workweek” means employees’ weekly work
schedules when intermittent leave is calculated, the majority
decides that, when employees take their FMLA leave in
consecutive weeks, “workweek” includes any days the
employer is operating regardless of the employees’ work
schedules. The majority’s interpretation runs afoul of
fundamental rules of statutory construction because it
requires that “workweek” have two different meanings
within the same statute. 2 “[P]rovisions of a text should be
interpreted in a way that renders them compatible, not
contradictory,” and this is not a situation where “context and
2
See READING LAW: THE INTERPRETATION OF LEGAL TEXTS 170
(Thomson/West, 1st ed. 2012) (“[W]here a word has a clear and definite
meaning when used in one part of a document, but has not when used in
another, the presumption is that the word is intended to have the same
meaning in the latter as in the former part.” (quoting HERBERT BROOM,
A SELECTION OF LEGAL MAXIMS 443 (Joseph Gerald Pease & Herbert
Chitty eds., 8th ed. 1911)) (alteration omitted).
SCALIA V. STATE OF ALASKA 27
other considerations . . . make it impossible to” render
intermittent and non-intermittent leave compatible. Antonin
Scalia & Bryan Garner, Reading Law: The Interpretation of
Legal Texts 180 (Thomson/West, 1st ed. 2012) (Reading
Law). Congress guaranteed twelve workweeks of leave
from work, and it emphasized that twelve meant twelve by
explicitly prohibiting employers from counting as
intermittent leave days employees are not otherwise
scheduled to work. 29 U.S.C. § 2612(b)(1).
III
Even if “workweek” is stripped of its statutory context
and treated as an ambiguous term, the familiar Skidmore
analysis supports the Secretary’s interpretation. Skidmore v.
Swift & Co., 323 U.S. 134, 140 (1944). Under Skidmore, the
weight given to the Secretary’s interpretation “depend[s]
upon the thoroughness evident in its consideration, the
validity of its reasoning, its consistency with earlier and later
pronouncements, and all those factors which give it power
to persuade, if lacking power to control.” Id. Every one of
these factors suggests the Secretary’s interpretation is
entitled to deference.
First, it is evident the Secretary thoroughly considered
the interpretation the Department of Labor (DOL) advances
here. See id. In 1995, DOL issued final rules implementing
the FMLA. See generally FMLA Preamble. In the preamble
to those regulations, DOL responded to comments relating
to the precise question at issue: “how a week of FMLA leave
would be counted for employees who work seven days and
then are off for seven days.” 60 Fed. Reg. at 2203. The
agency explained “[a]n employee’s FMLA leave entitlement
may only be reduced for time which the employee would
otherwise be required to report for duty, but for the taking of
the leave.” Id. Even more specifically, the agency stated
28 SCALIA V. STATE OF ALASKA
that “[i]f the employee is not scheduled to report for work,
the time period involved may not be counted as FMLA
leave.” Id. The preamble further provided that “[a]n
absence taken when the employee would not otherwise be
required to report for duty is not leave, FMLA or otherwise.”
Id. at 2229.
Our court has recognized that agencies “take[] pains to
understand and effectuate the congressional intent
underlying the statute,” and “are held accountable to the
public through the formal rulemaking process.” Price v.
Stevedoring Servs. of Am., Inc., 697 F.3d 820, 829 (9th Cir.
2012) (en banc). By engaging in the “rigors of rulemaking
. . . an agency presumably undertakes careful deliberation
about how best to effectuate statutory policies during the
demanding process of promulgating regulations that go
beyond simply restating a statute.” Id.The Secretary’s interpretation is also entitled to
Skidmore deference because it has been entirely consistent
over time. Skidmore, 323 U.S. at 140. In this dispute with
the State, the Secretary advances the same definition of
“workweek” that DOL announced in 1995: “[i]f the
employee is not scheduled to report for work, the time period
involved may not be counted as FMLA leave.” 60 Fed. Reg.
at 2203. Similarly, in response to a comment suggesting
“that all periods of leave taken by school employees should
count as FMLA leave, including any period of leave that
occurs outside the school term,” DOL disagreed and
explained “[a]n absence taken when the employee would not
otherwise be required to report for duty is not leave, FMLA
or otherwise.” Id. at 2229.
In 1999, the Secretary again interpreted “workweek” as
referring to employees’ regular work schedules. That year,
DOL explained in an opinion letter that “[u]nder the FMLA,
SCALIA V. STATE OF ALASKA 29
the term ‘workweek’ is the employee’s usual or normal
schedule (hours/days per week) prior to the start of FMLA
leave[.]” U.S. Dep’t of Labor, Wage & Hour Div., Opinion
Letter (July 19, 1999). In 2002, DOL again explained that
“the focus is always on the workweek, and the employee’s
‘normal’ workweek (hours/days per week) prior to the start
of FMLA leave is the controlling factor for determining how
much leave an employee is entitled to use.” U.S. Dep’t of
Labor, Wage & Hour Div., Opinion Letter (May 9, 2002).
DOL’s opinion letters show the Secretary has consistently
defined workweek as a unit of the employee’s own weekly
work schedule, and this consistency suggests the Secretary’s
interpretation is owed Skidmore deference.
The majority brushes aside the Secretary’s prior
consistent interpretations of “workweek” because they were
articulated in response to comments addressing regulations
implementing intermittent leave and leave for school
employees. But Congress granted “12 workweeks of leave”
for eligible employees regardless of whether they take
intermittent or continuous leave. 29 U.S.C.
§§ 2612(a)(1), (b)(1). Consistent with the language
Congress chose, the Secretary interprets “workweek” to
have the same meaning, regardless of the form of leave taken
or by whom. Thus, these provisions illustrate a fundamental
weakness in the majority’s analysis: “a word or phrase is
presumed to bear the same meaning throughout a text,” but
the majority’s interpretation requires that “workweeks” be
defined two different ways within the same statute. Reading
Law 170 (“[W]here a word has a clear and definite meaning
when used in one part of a document, but has not when used
in another, the presumption is that the word is intended to
have the same meaning in the latter as in the former part.”
(alteration and quotation omitted)). Defining “workweek”
to include all weeks the employer is operational, as the
30 SCALIA V. STATE OF ALASKA
majority does, is contrary to the FMLA’s intermittent leave
provisions.
Skidmore also directs that we consider the
persuasiveness of the Secretary’s interpretation. 323 U.S. at
140; see Indep. Training & Apprenticeship Program v. Cal.
Dep’t of Indus. Relations, 730 F.3d 1024, 1037 (9th Cir.
2013). The Secretary’s interpretation is compelling. First,
the Secretary’s interpretation is consistent with the decision
Congress made to use the term “workweeks” to describe the
twelve units of leave guaranteed by the FMLA, rather than
the word “weeks.” FMLA leave is unpaid, 29 U.S.C.
§ 2612(c), but the statute requires that employers hold
employees’ jobs open during the period the employee
requires to convalesce, care for ill relatives, or for
maternity/paternity leave, id. § 2614(a)(1)(A). If Congress
intended the employer to hold the job for twelve “weeks” it
could have said so. BedRoc, 541 U.S. at 183 (“The
preeminent canon of statutory interpretation requires us to
presume that the legislature says in a statute what it means
and means in a statute what it says there.” (alteration and
quotation omitted)). Instead, Congress required that jobs be
held open for up to twelve “workweeks.” 29 U.S.C.
§ 2614(a)(1)(A) (employees who take up to twelve
workweeks of leave “under section 2612 . . . shall be entitled
. . . to be restored by the employer to” their prior position or
an equivalent).
Second, as discussed, the FMLA does not refer to
“workweeks” in a vacuum; it refers to “workweeks of leave”
and employees do not need to use leave if they are not
scheduled to work. See 29 U.S.C. § 2612(a)(1). Third, the
intermittent leave provisions of the statute require that
workweeks be defined by the employees’ own work
schedules, contrary to the majority’s definition, which
SCALIA V. STATE OF ALASKA 31
counts every week the employer is operating, even if the
employees are not scheduled to work. See 29 U.S.C.
§ 2612(b)(1). The Secretary’s interpretation is the only
definition that can be harmonized with the statute as a whole.
The Secretary’s interpretation is also persuasive because
it reflects what we understand from experience. Employees
who are not required to work on weekends or on particular
holidays are not expected to seek permission to be absent
from work. Indeed, there is no work from which to be
absent. Imagine an employee who works a traditional nine-
to-five, Monday-through-Friday job and is entitled to ten
vacation days per year. We would not hesitate to decry an
employer who required this hypothetical employee to count
Saturdays and Sundays when calculating the ten days of
leave. Rotational employees’ “off-weeks” are the equivalent
because off-weeks are time rotational employees are not
expected to be on duty. Just as one would not consider “day”
to be synonymous with “workday,” we should not divest all
meaning from the “work-” part of “workweek,” nor should
“leave” be read out of the FMLA’s basic guarantee:
“12 workweeks of leave.” 29 U.S.C. § 2612(a)(1).
Finally, the Secretary’s interpretation is persuasive
because it is consistent with the Act’s stated purposes. See
Reading Law 63 (“A textually permissible interpretation that
furthers rather than obstructs the document’s purpose should
be favored.”). Congress enacted the statute to provide “job
security to employees who must be absent from work . . . .”
Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112, 1119 (9th
Cir. 2001). The need for federal legislation on this issue
stemmed from a realization that “employers’ leave policies
often do not permit employees reasonably to balance their
family obligations and their work life,” id., and one of the
stated purposes of the FMLA was “to entitle employees to
32 SCALIA V. STATE OF ALASKA
take reasonable leave for medical reasons,” 29 U.S.C.
§ 2601(b)(2). The Secretary’s interpretation promotes these
goals because it allows all qualifying employees—whether
they work Monday–Friday, rotational schedules, or some
other schedule—twelve of their workweeks of unpaid leave.
For more than two decades the Secretary has defined
“workweeks” by reference to employees’ regular weekly
work schedules, and “workweeks of leave” to mean weeks
during which employees would have been required to work
but for the taking of leave. The Secretary’s longstanding
interpretation is “the most persuasive account that has been
put forward,” Indep. Training & Apprenticeship Program,
730 F.3d at 1037: it defines workweek consistently
throughout the FMLA, and it furthers the FMLA’s
objectives. For these reasons, I would adopt the Secretary’s
interpretation of “workweeks” as weeks in which an
employee is scheduled to work, and affirm the district
court’s order. 3
IV
The majority does not support its contrary conclusion
that Congress intended to incorporate the FLSA’s regulatory
3
The State discounts the Secretary’s interpretation as a mere
litigation position, but this misapplies the term. A litigation position is
one a party only advances in litigation and is “wholly unsupported by
regulations, rulings, or administrative practice.” Bowen v. Georgetown
Univ. Hosp., 488 U.S. 204, 212 (1988); see Alaska v. Fed. Subsistence
Bd., 544 F.3d 1089, 1095 (9th Cir. 2008) (declining to defer to the
government’s statutory interpretation because it was “unmoored from
any official agency interpretation” and explaining the government’s
position “appear[ed] to be purely a litigation position, developed during
the course of” that case). Far from cooking up a litigation position during
the course of this dispute, the Secretary has articulated the same
definition of “workweek” for more than two decades.
SCALIA V. STATE OF ALASKA 33
definition of “workweek” when it passed the FMLA nearly
sixty years later. There is no general rule that once a
thematically similar statute has defined a term, any
subsequent statute that fails to define the term necessarily
incorporates the first statute’s definition. Nor is there a
general rule that courts must look to the FLSA when
interpreting the FMLA. And critically, even assuming
Congress intended to incorporate the FLSA’s definition, that
statute does not support the majority. The FLSA’s guarantee
of overtime wages for hours worked in excess of a forty-hour
workweek is necessarily judged by looking to employees’
individual work schedules, not to the employer’s hours of
operation. See 29 U.S.C. § 207(a)(1); 29 C.F.R. § 778.105.
Congress enacted the FLSA in 1938 to correct and
eliminate “labor conditions detrimental to the maintenance
of the minimum standard of living necessary for health,
efficiency, and general well-being of workers . . . .”
29 U.S.C. § 202(a); see also Douglas v. Xerox Bus. Servs.,
LLC, 875 F.3d 884, 887 (9th Cir. 2017). One of the two
signature protections provided by the FLSA—the payment
of overtime for work in excess of forty hours—must be
calculated according to employees’ individual work
schedules because whether an employee is entitled to
overtime pay depends entirely upon how many hours the
employee works in a given week. 29 U.S.C. § 207(a)(1)
(employers must pay overtime to employees who work
“longer than forty hours” during a workweek); see, e.g.,
Landers v. Quality Commc’ns, Inc., 771 F.3d 638, 645 (9th
Cir. 2014) (“[A] plaintiff asserting a violation of the FLSA
overtime provisions must allege that she worked more than
forty hours in a given workweek without being compensated
for the hours worked in excess of forty during that week.”).
34 SCALIA V. STATE OF ALASKA
The concern that employers might define, and redefine,
employees’ workweeks to avoid paying overtime has
persisted since the FLSA was first enacted, and it gives
context to DOL’s specific need to define “workweek” to
implement the FLSA. See e.g., Walling v. Helmerich &
Payne, 323 U.S. 37, 39–40 (1944) (invalidating a “split-day
plan of compensation” designed “to deprive the employees
of their statutory right to receive” overtime pay); Rogers v.
City of Troy, 148 F.3d 52, 55–56 (2d Cir. 1998) (explaining
that courts have repeatedly disapproved of employers’
practices that “resulted in evasions of the minimum wage
and overtime provisions of the FLSA”).
The majority relies on the following FLSA
implementing regulation:
An employee’s workweek is a fixed and
regularly recurring period of 168 hours—
seven consecutive 24-hour periods. It need
not coincide with the calendar week but may
begin on any day and at any hour of the day.
For purposes of computing pay due under the
Fair Labor Standards Act, a single workweek
may be established for a plant or other
establishment as a whole or different
workweeks may be established for different
employees or groups of employees. Once the
beginning time of an employee’s workweek
is established, it remains fixed regardless of
the schedule of hours worked by him.
29 C.F.R. § 778.105 (emphasis added). The majority
emphasizes the regulation’s final sentence and, curiously,
contends that it “makes clear that a ‘workweek’ does not
revolve around an individual employee’s own work
SCALIA V. STATE OF ALASKA 35
schedule.” In fact, the regulation does just that, defining
individual employees’ “workweeks” as fixed seven-day
periods and expressly stating that employees’ workweeks
need not be the same as the workweek for the plant or
establishment as a whole. Id.It is uncontested that “workweeks” are seven-day units
of time against which an employee’s entitlement to a
statutory benefit is measured, but the FLSA’s definition of
“workweek” simply cannot be reconciled with the majority’s
conclusion that “workweek” must include any time the
employer is operational. Indeed, the calculation of an
employee’s forty-hour workweek turns on the number of
hours an employee works, not on the hours the employer is
open for business. 29 C.F.R. § 778.105. 4
Finally, the majority falls back on its judgment that
reading “workweek” to exclude a rotational worker’s “off-
weeks” would create a fundamentally unfair windfall for
rotational workers. The majority decides the better option is
for rotational workers to use six of their “off-weeks” and
receive just six weeks of leave because twelve consecutive
weeks away from work is the balance Congress struck. This
overlooks that the balance Congress struck addressed
employees working traditional schedules. There is no
indication Congress considered employees working
rotational schedules, and Congress left it to the Secretary to
promulgate regulations implementing the Act. “It is beyond
our province . . . to provide for what we might think . . . is
4
The majority also contends the use of “administrative workweek”
in Title II of the FMLA furthers their cause because it is essentially
equivalent to the FLSA’s definition of “workweek.” But for the reasons
explained, the FLSA’s definition of “workweek” contradicts the
majority’s contention that a workweek is the period an employer is
operational.
36 SCALIA V. STATE OF ALASKA
the preferred result.” United States v. Granderson, 511 U.S.
39, 68 (1994) (Kennedy, J., concurring).
The FMLA provides that all eligible employees—
whether they work rotational schedules or otherwise—are
entitled to twelve of their workweeks of leave, not twelve
consecutive weeks away from work. Congress set twelve
workweeks of leave as the default, and the FMLA does not
carve out a different rule for rotational employees. “[T]he
fact that Congress might have acted with greater clarity or
foresight does not give courts a carte blanche to redraft
statutes in an effort to achieve that which Congress is
perceived to have failed to do.” United States v. Locke,
471 U.S. 84, 95 (1985).
The Secretary’s interpretation of the FMLA furthers the
Act’s stated purposes; it can be harmonized with the
FMLA’s other provisions and it allows the same definition
of “workweek” to be used throughout the statute. The same
is not true of the definition the majority imports from the
FLSA. For all of these reasons, I would give deference to
the Secretary’s interpretation and affirm the district court’s
summary judgment order.