Federal Court Rules Nonconsecutive Periods of Employment May Count Toward 12-Month Requirement for FMLA Eligibility

By Marla B. Matthews

February 2007

Most employers are familiar with the Family Medical Leave Act’s (“FMLA”) requirement that an “eligible employee” is entitled to up to twelve weeks of leave per year if the leave is taken for an FMLA-qualifying reason. But just who is an “eligible employee?” A recent decision by the First Circuit Court of Appeals, which sets the law for the states of New Hampshire, Maine, Massachusetts, Rhode Island and Puerto Rico, may have further muddied the waters in this already difficult-to-navigate area of the law. See Rucker v. Lee Holding Co., 471 F.3d 6 (1st Cir. 2006).


Kenneth Rucker worked as a salesman for Lee Auto Malls (“Lee”) in Maine. After working for Lee for five years, Rucker voluntarily ended his employment. Rucker rejoined Lee five years later. Seven and a half months after rejoining Lee, Rucker ruptured a disk in his back and took medical leave. Approximately six weeks later, after Rucker had missed work for a total of thirteen days and was still out on medical leave, Lee terminated Rucker’s employment. Rucker subsequently brought suit against Lee, alleging that he had been discharged in violation of the FMLA for taking medical leave.

Applicable Law

The FMLA defines an “eligible employee” as someone who has been employed for at least twelve months by the employer from which leave is sought, and who has worked at least 1,250 hours for the employer during the previous twelve-month period.

In the Rucker case, there was no dispute that Rucker had worked over 1,250 hours since rejoining Lee. The question was whether Rucker could count his previous employment with Lee toward the twelve-month requirement. Because Rucker had only been re-employed by Lee for seven and a half months at the time of his injury, he would not be eligible for FMLA leave unless his previous employment could be used to satisfy the twelve-month employment requirement.

The First Circuit’s Decision

After the Maine District Court dismissed Rucker’s lawsuit based on its finding that he could not combine periods of nonconsecutive employment to satisfy the twelve-month requirement, Rucker brought his case to the First Circuit Court of Appeals.

The First Circuit overturned the Maine District Court’s decision and held that the complete separation of an employee from his/her employer for a period of five years does not necessarily prevent the employee from using periods of previous nonconsecutive employment toward satisfying the twelve-month requirement.

Interestingly, the United States Department of Labor (“DOL”) submitted a Friend of the Court brief arguing that a five-year gap in employment should be the “outer bounds” for when previous employment can be counted toward the twelve-month requirement. The First Circuit, however, set no limit with regard to counting periods of previous employment. The Court simply stated that a five year separation from employment would not prevent an employee from counting previous periods of employment with the same employer in order to satisfy the twelve-month employment requirement, leaving employers to wonder how far back can an employee go?

What Does This Mean for Employers?

This decision means that employers will need to consider previous nonconsecutive periods of employment in determining whether an employee has met the twelve-month requirement necessary to be eligible for FMLA protections. Previous periods of employment should be considered even if the employee has been separated from the employer for an extended period of time (at least five years and perhaps even longer) and the employee secured other employment during the break in service.

In order to comply with the requirement, employers should also check their record retention policies to ensure that records of breaks in employment are maintained and provided to the person or department making decisions about an employee’s FMLA eligibility. Many employers have employment applications that require applicants to list any previous periods of employment with the employer. If an applicant lists previous periods of employment with the company, these periods should be considered in determining FMLA eligibility. If an employer does not require this information on an employment application, the employer should obtain this information from every employee at the time of hire and note it in the employee’s personnel file. Employers should also review references to FMLA eligibility requirements in their employee handbooks, notices, publications and other communications to see if any applicable language needs to be amended or clarified.

For now, the Rucker decision is the law in New Hampshire, Maine, Massachusetts, Rhode Island and Puerto Rico. Since the DOL is in the process of reexamining its FMLA regulations, employers should stay tuned to see whether any nonconsecutive employment language makes its way into the definition of an “eligible employee.”