The Department of Labor had a penalty to make employers notify employees of the rules for securing more generous family or medical leave, than existed under the Family and Medical Leave Act of 1993 (FMLA) guarantees employees 12 weeks unpaid leave.

The Supreme Court held by five to four that the FMLA precluded the right of the Department of Labor to draft penalty rules.

Justice O'Connor dissented (joined by Justices Ginsburg, Souter, and Breyer) holding that nothing prevented the rule, and it was the Department of Labor's job to enforce the law.

V), clearly precludes the Secretary of Labor from adopting a rule requiring an employer to give an employee notice that leave is FMLA qualifying before the leave may be counted against the employer's 12-week obligation.

Because I believe the Secretary is justified in requiring such individualized notice and because I think that nothing in the Act constrains the Secretary's ability to secure compliance with that requirement by refusing to count the leave against the employer's statutory obligation, I respectfully dissent.