Bellum v. PCE Constructors, Fifth Circuit, No. 04-60409, April 25, 2005

Bellum v. PCE Constructors, United States Court of Appeals for the Fifth Circuit*, No. 04-60409, Decided April 25, 2005

Decision: The 75-mile rule in the FMLA is measured by surface (road) miles, rather than as the crow flies.

Larry Bellum worked on a contract basis for PCE Constructors at a worksite in Fernwood, Mississippi. PCE’s headquarters was located in Baton Rouge, which employed 14 people, with 41 employed at the Fernwood site. The distance between the two locations is just under 70 linear miles, but 88 miles over public roadways.

On December 26, 2000, Bellum took medical leave under the FMLA. In March when Bellum was ready to return to work, he was told by his supervisor there was no work available for him, and he was subsequently terminated. Bellum sued PCE for violating his rights under the FMLA by not returning him to work.

PCE disputed whether Bellum was an “eligible employee,” because PCE headquarters, as measured over public roads, is more than 75 miles from the Fernwood worksite. Employees are eligible for FMLA leave if they work at a site with at least 50 company employees within 75 miles. Bellum counters that the exception does not apply because the linear distance, i.e., “as the crow flies,” between the Fernwood worksite and the Baton Rouge headquarters is less than 70 miles. The court held that the 75-mile distance is to be measured in surface miles, which is consistent with a Department of Labor regulation (29 CFR 825.111(b)) that states surface miles should be used to determine the distance. The distance should be measured “as the crow flies” only when there is no available surface transportation between worksites. Therefore, Bellum was not an eligible employee under the FMLA and he was not entitled to reinstatement.

* The Fifth Circuit covers the states of Louisiana, Mississippi, and Texas.