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Dept. of Labor not expected to make FMLA alterations


While the U.S. Department of Labor is asking for public comment on possible changes to the Family and Medical Leave Act and its regulations, many observers are pessimistic that the department is likely to take action, given the DOL's failure to do anything so far.

For instance, the department was expected to issue new regulations following the U.S. Supreme Court's 2002 decision in Ragsdale vs. Wolverine World Wide Inc., but never did.

That opinion struck down a DOL regulation that if an employee takes leave and the employer does not designate the leave as FMLA, the leave cannot be counted against an employee's entitlement to 12 weeks of FMLA leave.

"I'm not really confident they're going to do that much, but who knows? I could be wrong," said Joan E. Gale, an attorney with Seyfarth Shaw L.L.P. in Chicago.

Arthur F. Silbergeld, an attorney with Proskauer Rose L.L.P. in Los Angeles, said the DOL's head may be a Republican appointee, "but there are a lot of people in the department who are career employees who have a different view, so I think a tug of war between the administration and the career employees is likely to result in very little action," unless Congress moves to act on the issue. Right now, that is not a top priority, according to Mr. Silbergeld.

The chances of any action are "slim to none," said Michael W. Fox, an attorney with Ogletree, Deakins, Nash, Smoak & Stewart P.C. in Austin, Texas.

"There's not enough time left, I would think, in the Bush administration" for anything to get through Congress, Mr. Fox said.

He pointed out that after the request for information, the Labor Department would issue proposed rules, and then it would wait for public comment on those.

"If they had anything that was deemed to be taking away some rights, I think they would meet a firestorm of resistance, at least until after the presidential election," Mr. Fox said.

Dorian Smith, a Valhalla, N.Y.-based technical consultant with Towers Perrin, explained, "We are under a Bush DOL, and to the extent this DOL wants to get something out while they still have power, we would think they should hope to have something issued before the elections in 2008."

Some observers say that if the Department of Labor takes any action at all, it is likely to be in response to the Wolverine decision.

That decision "left a gaping hole" in the regulations, said Matt Morris, an employment law consultant with Lincolnshire, Ill.-based Hewitt Associates Inc.