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Former employee can sue under FMLA for failure to rehire.

Smith v. BellSouth Telecommunications, Inc., 273 F.3d 1303 (11th Cir. November 27, 2001) - Arthur Leroy Smith resigned from BellSouth in October of 1998. In January of 1999, he sought to be rehired. He was not rehired and there was some evidence that the decision was based on the fact that he had previously taken FMLA leave. The district court granted summary judgment on the basis that Smith -- as a former employee -- was not an "employee" for FMLA purposes and therefore was not protected by the Act. The Eleventh Circuit holds that the term "employee" is ambiguous as to whether it applies to former employees. Therefore, based on the teachings of Chevron U.S.A., Inc. v. N.R.D.C., 467 U. S. 837 (1984), the Court looks to see if the agency regulation on this subject (which is broad enough to include former employees) is reasonable. The Court holds that it is because if former employees knew they would have no remedy if their former employers retaliated against them for their past use of FMLA leave, it would tend to chill their willingness to exercise their protected leave rights and would work against the purpose of the FMLA. The Department of Labor regulation at issue is: 29 C.F.R. § 825.220(c). The only other Court of Appeals case to address this issue is: Duckworth v. Pratt & Whitney, Inc., 152 F.3d 1 (1st Cir. July 14, 1998). The First Circuit ruled the same way as the Eleventh Circuit. Click here to see actual case.