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                 United States Court of Appeals
                     For the First Circuit
                                
                      ____________________
                                
                                
                                
                                  No.  97-2244
  
                         MARK DUCKWORTH,
                                
                     Plaintiff, Appellant,
                                
                               v.
                                
                     PRATT & WHITNEY, INC.,
                                
                      Defendant, Appellee.
                      ____________________
                                 
          APPEAL FROM THE UNITED STATES DISTRICT COURT
                                
                   FOR THE DISTRICT OF MAINE
                                
            [Hon. Gene Carter, U.S. District Judge]
                      ____________________
                                
                             Before
                                
                     Lynch, Circuit Judge,
                                
          Campbell and Bownes, Senior Circuit Judges.
                                
                      ____________________
                                
                                    Helen Norton, with whom Donna R. Lenhoff, Janet S.
  Chung, National Partnership For Women & Families, Peter L.
  Thompson and Law Offices of Ronald Coles, were on brief, for
  appellant.
           Richard G. Moon, with whom Jonathan Shapiro, Melinda
  J. Caterine, and Moon, Moss, McGill, Hayes & Shapiro, P.A. were
  on brief, for appellee.
           Leif G. Jorgenson, Attorney, United States Department
  of Labor, with whom Marvin Krislov, Deputy Solicitor of Labor
  for National Operations, Steven J. Mandel, Associate Solicitor,
  and William J. Stone, Counsel for Appellate Litigation, were on
  brief, for United States Secretary of Labor, amicus curiae.
           Catherine K. Ruckelshaus, Sara E. Rios, Patricia A.
  Shiu, Catherine R. Albiston, and Robin Runge on brief for
  National Employment Law Project, Employment Law Center (a
  project of the Legal Aid Society of San Francisco), National
  Council of Jewish Women, United Mine Workers of America, Equal
  Rights Advocates, Center for Women Policy Studies, Union of
  Needletrades, Industrial & Textile Employees, Women Employed,
  American Federation of State, County and Municipal Employees,
  International Federation of Professional and Technical
  Engineers, American Federation of Teachers, American
  Association of University Women, RESOLVE, Service Employees
  International Union, American Association of Retired Persons,
  National Women's Law Center, American Civil Liberties Union of
  Massachusetts, and 9to5, National Association of Working Women,
  amici curiae.
           Ann Elizabeth Reesman, Robert E. Williams, and
  McGuiness & Williams on brief for Equal Employment Advisory
  Council, amicus curiae.
           Loretta M. Smith and New England Legal Foundation on
  brief for Associated Industries of Massachusetts, Business and
  Industry Association of New Hampshire, Connecticut Business and
  Industry Association and Maine Chamber and Business Alliance,
  amici curiae.
  
                      ____________________
                                
                         July 14, 1998
                      ____________________
                                   �          LYNCH, Circuit Judge.  The facts alleged in this case
  are simple: that Pratt & Whitney refused to rehire Mark
  Duckworth because he had a "poor" attendance rating resulting
  from his fifty-two day absence from work in 1994 caused by a
  serious health condition, an absence protected by the federal
  Family and Medical Leave Act (FMLA), 29 U.S.C. �� 2601-54, and
  its state counterpart, Maine's Family Medical Leave
  Requirements, Me. Rev. Stat. Ann. tit. 26, �� 843-48 (West
  1997).  Duckworth says the refusal to rehire violated these
  laws because the employer's decision was based on Duckworth's
  use of statutorily protected leave.  Duckworth's complaint was
  dismissed for failure to state a claim pursuant to Fed. R. Civ.
  P. 12(b)(6).  We reverse and reinstate the lawsuit.
                                I.  We state the facts as they are alleged in Duckworth's
  complaint, which we take to be true for the purposes of a
  motion to dismiss.  See Salois v. Dime Sav. Bank, 128 F.3d 20,
  22 (1st Cir. 1997).
           Duckworth was employed by a Pratt & Whitney
  manufacturing facility in North Berwick, Maine from 1980 until
  December 1994, when he was laid off.  Attendant to the layoff,
  one of Duckworth's former supervisors completed an "Employment
  Termination Record" sometime around January 6, 1995.  The
  Termination Record had a line entitled "Rehire Status."  On
  that line, the supervisor wrote that Duckworth's attendance was
  "poor."  Nearly two years later, on October 17, 1996, Duckworth
  unsuccessfully applied to Pratt & Whitney for a job. 
  Duckworth's complaint states that the "poor" attendance rating
  was the basis for Pratt & Whitney's refusal to rehire him. 
  Duckworth alleges that the "poor" rating resulted from his
  taking fifty-two days of medical leave in 1994, leave that was
  protected by the FMLA, and that Pratt & Whitney's refusal to
  rehire him thus interfered with his FMLA-protected right to
  take medical leave.
           We take it as given that the 1994 leave was covered
  by the FMLA.  Apparently, an accident left Duckworth with a
  punctured lung and broken ribs, which caused him to be absent
  from work from June 20, 1994 to August 11, 1994.  The effects
  of those injuries and of the medications he took caused
  Duckworth to be absent a second time, from August 31, 1994 to
  September 22, 1994.  He was under his physician's treatment
  throughout.  It is also undisputed that Duckworth suffered from
  a "serious health condition" as defined by 29 U.S.C. � 2611(11)
  at the time of the absences.  Further, Pratt & Whitney concedes
  that Duckworth was an "eligible employee" within the meaning of
  � 2611(2) at the time he took leave and that Pratt & Whitney
  was a covered "employer" within the meaning of � 2611(4).
                                II.      Duckworth brought suit in the United States District
  Court for the District of Maine in August 1997.  He alleged
  that the employer had willfully discriminated against him for
  having exercised his FMLA-protected right to take medical
 leave, in violation of 29 U.S.C. � 2615 and its Maine analogue.   
    That section of the FMLA, entitled "Prohibited Acts," provides:
        (a) Interference with rights
             (1) Exercise of rights
                  It shall be unlawful for any
                  employer     to interfere with,
                  restrain, or deny the exercise
                  of or the attempt to exercise,
                  any right provided under this
                  subchapter.
    
    29 U.S.C. � 2615(a)(1).
        Duckworth also relied on a regulation promulgated by
    the United States Department of Labor (DOL) that makes it clear
    that employers may not take a prospective employee's past use
    of FMLA-protected leave into account in hiring decisions.  That
    regulation provides:
        An employer is prohibited from
        discriminating against      employees or
        prospective employees who have used FMLA
        leave. . . .  [E]mployers cannot use the
        taking of FMLA leave as a negative factor
        in employment actions,      such as hiring,
        promotions or disciplinary actions . . . .
    
    29 C.F.R. � 825.220(c).  Because he is entitled to protection
    under this regulation, Duckworth says he may bring an action
    under 29 U.S.C. � 2617(a) to enforce those rights.  In this,
    the DOL agrees with him.
        The district court dismissed the action for failure
    to state a claim on which relief may be granted, basing its
    reasoning on the provision of the Act creating a private right
    of action:
        An action . . . may be maintained against
        any employer . . . by any one or more
        employees for and in behalf of -- 
             (A) the employees; or
             (B) the employees and other employees
             similarly    situated.
    
    29 U.S.C. � 2617(a)(2).  The district court reasoned that
    because Duckworth had volunteered for a layoff, his claim arose
    from his status as a prospective employee, not as a current,
    eligible employee.  The district court noted that the
    enforcement provisions of the Act created a private remedy only
    for "employees."  The district court reasoned that the term
    "employees" is not ambiguous, but inherently applies only to
    current employees (thus rejecting DOL's interpretation of the
    term to include prospective employees), and that Duckworth had
    no cause of action because he was not a current employee.  The
    court noted that if Congress had intended to include job
    applicants within the meaning of the FMLA, it could have
    expressly included job applicants within the statute's
    coverage, as it did in the Americans with Disabilities Act
    (ADA), 42 U.S.C. �� 12101-12213.  The federal claim having been
    dismissed, the court also dismissed, without prejudice, the
    pendent state claim.
                               III.
                                      We review the district court's dismissal order de
    novo.  See Doyle v. Hasbro, Inc., 103 F.3d 186, 190 (1st Cir.
    1996).
        Although this case is a significant one for
    individuals and employers affected by the FMLA, it turns on a
    relatively straightforward and limited question of statutory
    construction, and then on deference to administrative
    lawmaking.  For the purposes of its motion to dismiss, Pratt &
    Whitney essentially concedes that the actions described by
    Duckworth's complaint may have violated 29 U.S.C. � 2615, which
    makes it "unlawful for any employer to interfere with,
    restrain, or deny the exercise of or the attempt to exercise,
    any right" protected by the FMLA.  But, Pratt & Whitney argues,
    he has no judicial forum available, only an administrative one.
        Pratt & Whitney correctly notes that Congress
    provided several mechanisms for enforcing the FMLA.  First,
    Congress provided "employees" an express private right of
  action to enforce the Act.  See 29 U.S.C. � 2617(a)(2).    The
    Secretary of Labor has authority to bring civil actions against
    violators.  See id. � 2617(b).  Aggrieved individuals may file
    an administrative complaint with the DOL.  See id. �
  2617(b)(1).    Hence, Pratt & Whitney argues, if Duckworth has
    a claim at all, he must rely on administrative enforcement
    because he was not an "employee" at the time of the violation, 
    but only a prospective employee.  
       Thus, the question is whether Duckworth may avail
    himself of the Act's private right of action, a right of action
    that is limited to "employees."  The district court determined
    that the Act provides a private remedy only for those employees
    who suffer adverse action at the time they are employed by the
    employer in question.  This interpretation would exclude
    prospective employees who complain that they were not hired
    because they had used FMLA-protected leave in the past, as well
    as former employees whose previous employer retaliates against
    them for using FMLA-protected leave by, for example, giving a
  negative reference to a future employer.  
        We do not write on a clean slate.  The Act delegates
    to the Secretary of Labor broad authority to "prescribe such
    regulations as are necessary to carry out" the Act.  29 U.S.C.
    � 2654.  The regulations on which Duckworth relies were
    promulgated pursuant to the requirements of notice-and-comment
    rulemaking under the Administrative Procedure Act, 5 U.S.C. �
    553.  Under those regulations, Duckworth is an "employee" who
    can sue for violations of 29 U.S.C. � 2615.  Pratt & Whitney
    does not challenge the procedural validity of the rulemaking
    process.
        The Secretary of Labor argues that the term
    "employees" is ambiguous, not inherently limited to current
    employees, and that its regulations extending the Act's
    protection to prospective and former employees are entitled to
    deference.  See  Chevron v. Natural Resources Defense Council,
    467 U.S. 837, 843-44 (1984); see also 29 C.F.R. � 825.220(c). 
    The regulations were an exercise of the Secretary's delegated
    authority and were adopted with the participation of the
    public, and thus deference to the Secretary's interpretation is
  properly invoked.  
       "Under the formulation now familiar, when we examine
    the Secretary's rule interpreting a statute, we ask first
    whether 'the intent of Congress is clear' as to 'the precise
    question at issue.'"  Regions Hosp. v. Shalala, 118 S. Ct. 909,
    915 (1998) (quoting Chevron, 467 U.S. at 842).  We use
    traditional tools of statutory construction to determine if
    Congress' intent is clear as to that precise issue.  See
    id.; Goncalves v. Reno, No. 97-1953, 1998 WL 236799, at *18
    (1st Cir. May 15, 1998).  If, however, "the statute is silent
    or ambiguous with respect to the specific issue, the question
    for the court is whether the agency's answer is based on a
    permissible construction of the statute."  Chevron, 467 U.S. at
    843.  "If the agency's reading fills a gap or defines a term in
    a reasonable way in light of the Legislature's design, we give
    that reading controlling weight, even if it is not the answer
    'the court would have reached if the question initially had
    arisen in a judicial proceeding.'"  Regions Hosp., 118 S. Ct.
    at 915 (quoting Chevron, 467 U.S. at 843 n.11).
       Under the first step of the Chevron analysis, we
    examine the statutory language at issue using our traditional
    tools of statutory construction.  That requires us to determine
    whether "the language at issue has a plain and unambiguous
    meaning with regard to the particular dispute in the case." 
    Robinson v. Shell Oil Co., 117 S. Ct. 843, 846 (1997).  "The
    plainness or ambiguity of statutory language is determined by
    reference to the language itself, the specific context in which
    the language is used, and the broader context of the statute as
    a whole."  Id.  We employ that process to determine whether
    Congress has spoken, for "[i]f the intent of Congress is clear,
    that is the end of the matter; for the court, as well as the
    agency, must give effect to the unambiguously expressed intent
    of Congress."  Chevron, 467 U.S. at 842-43.
       The district court determined that the term
    "employees" has an inherent "plain meaning."  The plain meaning
    seen by the district court was that "employees" means "current
    employees."  Such a definition excludes prospective employees,
    and, necessarily, former employees.  If, by choosing the word
    "employees," Congress had manifested an unambiguous intent to
    exclude Duckworth's claim from the Act's coverage, we would
    agree with the district court and would be bound to reject the
    Secretary's interpretation.  No deference is due the
    administrative agency's interpretation if it conflicts with
    unambiguous language.  See Strickland v. Commissioner, Me.
    Dep't of Human Servs., 48 F.3d 12, 16 (1st Cir. 1995).  Whether
    the statute is ambiguous is a question of law for the court to
  decide,   and it is one which we must review de novo.  See id.at 16-17.  We think the district court's determination that the
    term "employees" is unambiguous, always meaning "current
    employees," is in error for several reasons.
       First, courts have consistently regarded the term
    "employees," as used in other federal employment statutes, as
    not inherently limited to current employees.  Cases involving
    such statutes are instructive, although not determinative.  SeeSerapion v. Martinez, 119 F.3d 982, 985 (1st Cir. 1997) ("We
    regard Title VII, ADEA, ERISA, and FLSA as standing in pari
    passu and endorse the practice of treating judicial precedents
    interpreting one such statute as instructive in decisions
    involving another.")
       Second, in Robinson, supra, a case raising a very
    similar issue under another employment statute, the Supreme
    Court made clear that the term "employees," as used in the
    anti-retaliation provision of Title VII, 42 U.S.C. � 2000e-
    3(a), includes former employees.  The rationale of Robinsonapplies here.  In Robinson, the plaintiff was fired and he
    filed a charge with the Equal Employment Opportunity Commission
    (EEOC) saying that his firing was motivated by race
    discrimination.  See 117 S. Ct. at 845.  The plaintiff then
    applied for a job at another company, and his former employer
    gave a negative reference.  See id.  The plaintiff alleged this
    poor reference was in retaliation for his EEOC charge, and
    filed suit.  The district court dismissed the lawsuit on the
    ground that the plaintiff was not an "employee" at the time the
    adverse action was taken, and the court of appeals affirmed. 
    A unanimous Supreme Court reversed.
       The Supreme Court reasoned that the word "employee"
    does not have some "intrinsically plain meaning," id. at 847
    n.4, that is limited "to those having an existing employment
    relationship with the employer in question," even though that
    argument may seem plausible "at first blush."  Id. at 846. 
    Canvassing various federal statutes, Robinson noted that
    Congress has not used the term "employee" with precision, but
    rather has used the term, at various times, to refer to both
    former and prospective employees.  Id. at 846-47; see also NLRBv. Town & Country Elec., Inc., 516 U.S. 85 (1995) (upholding
    the NLRB's determination that the term "employees" in the
    National Labor Relations Act (NLRA) applies to prospective
    employees who were paid union organizers); Passer v. American
    Chem. Soc'y, 935 F.2d 322, 330-31 (D.C. Cir. 1991) (term
    "employees" in Age Discrimination in Employment Act (ADEA)
    includes former employees).  Thus, absent an express "temporal
    qualifier," such as "current," Robinson, 117 S. Ct. at 846,
    Congress' use of the word "employees" does not inherently
    exclude former and prospective employees.
       Third, an example of ambiguity, thus counselling
    deference to the agency, comes from the definitional section
    enacted by Congress.  The FMLA provides that the definition of
    "employee" in the FLSA, 29 U.S.C. � 203(e), is also applicable
    to the FMLA.  See 29 U.S.C. � 2611(3).  That definition, "any
    individual employed by an employer," 29 U.S.C. � 203(e), (which
    is subject to certain exceptions not relevant here) does not
    make the term any less ambiguous. In Robinson, the Supreme
    Court found that the identical definition contained in Title
    VII did not add anything to "employee" which made it less
    ambiguous.  See 117 S. Ct. at 847; see also Nationwide Mut.
    Ins. Co. v. Darden, 503 U.S. 318, 323 (1992) ("ERISA's nominal
    definition of 'employee' as 'any individual employed by an
    employer' is completely circular and explains nothing."
    (Citation omitted.)).
       Pratt & Whitney argues that, although the term
    "employed" could mean both "is employed" or "was employed," seeRobinson, 117 S. Ct. at 847 (noting this ambiguity), it cannot
    mean "will be employed," and so the use of the FLSA definition
    at least excludes prospective employees.  However, the FMLA's
    use of the FLSA definition of "employee" was plainly meant to
    incorporate the FLSA's list of exceptions, see 29 U.S.C. �
    203(e), not to exclude prospective employees from the FMLA's
    coverage.  Indeed, the FLSA definition of "employee" has been
    held by one circuit court to apply to prospective employees,
    see Dunlop v. Carriage Carpet Co., 548 F.2d 139 (6th Cir.
    1977), and has been described by the Supreme Court as
    "exceedingly broad," Tony & Susan Alamo Found. v. Secretary of
    Labor, 471 U.S. 290, 295 (1985); see also United States v.
    Rosenwasser, 323 U.S. 360, 362 (1945) ("A broader or more
    comprehensive coverage of employees within the stated
    categories [in the FLSA] would be difficult to frame.") 
    "Congress' repetition of a well-established term carries the
    implication that Congress intended the term to be construed in
    accordance with pre-existing regulatory [and judicial]
    interpretations."  Bragdon v. Abbott, No. 97-156, 1998 WL
    332958, at *5 (U.S. June 25, 1998); see also Goncalves, 1998 WL
    236799, at *25 (noting that Congress is presumptively aware of
    existing judicial or administrative interpretations). 
    Moreover, the legislative history reveals that Congress, at the
    time it enacted the FMLA, was aware of the breadth of the FLSA
    definition and purposely chose to adopt that definition.  SeeS. Rep. No. 103-3, at 22 (1993), reprinted in 1993 U.S.C.C.A.N.
    3, 25 (noting that "[t]his definition is broadly inclusive");
    Bragdon, 1998 WL 332958, at *13 (noting that the legislative
    history revealed Congress' awareness of the breadth of the
    definition of "handicap" in the Rehabilitation Act when it
    chose to include that definition in drafting the ADA).
        Fourth, our reading of other statutory provisions
    does not eliminate the ambiguity.  In providing various
    readings of statutory terms below, we are most emphatically not
    ruling on whether the particular readings are correct, only
    that the variety of possible readings demonstrates ambiguity. 
    And that ambiguity sets the stage for deference to reasonable
    administrative interpretation.  In this context, we address one
    of Pratt & Whitney's strongest arguments, that Congress has, in
    some statutes, distinguished "job applicants" from "employees,"
    expressly providing that the statute's protection extends to
    both.  See, e.g., 42 U.S.C. � 12112(b)(1) (providing that, in
    the ADA, "the term 'discriminate' includes limiting,
    segregating or classifying a job applicant or employee" in a
    way that adversely affects a disabled individual's
    opportunities).  Congress could have done so here, under the
    FMLA, but did not.  That Congress could have singled out "job
    applicants" for express coverage does not mean it clearly
    intended to exclude job applicants from the FMLA.  Indeed, much
    prior judicial interpretation of analogous statutes could lead
    Congress to conclude that such a level of precision is not
    required, or at least that it could, by choosing to use an
    open-ended term like "employee," entrust that policy choice to
    the agency.  For example, the NLRA does not explicitly include
    "job applicants" within its definition of "employees," see 29
    U.S.C. � 152(3), but the Supreme Court has long held that term
    to include prospective employees, see Phelps Dodge Corp. v.
    NLRB, 313 U.S. 177, 185-86 (1941), and has recently upheld a
    Board determination that the term applies to prospective
    employees who were paid union organizers, see Town & Country,
    516 U.S. at 87.  In the FMLA, Congress did not provide separate
    protection for "job applicants" and for "employees."  The
    Supreme Court has repeatedly observed that the word "employee"
    "is not treated by Congress as a word of art having a definite
    meaning" that would, for example, exclude prospective or former
    employees.  NLRB v. Hearst Publications, Inc., 322 U.S. 111,
    124 (1944) (internal quotation marks and citation omitted).
        Pratt & Whitney next argues that, given the "specific
    context in which [the term 'employees'] is used," Robinson, 117
    S. Ct. at 846, the term can only mean current employees.  This,
    Pratt & Whitney argues, is the express "temporal qualifier"
    that makes the term "employees" in 29 U.S.C. � 2617
    unambiguous, and thus makes the outcome of Robinson not
    controlling.  Paragraph (1) of the section at issue makes
    "[a]ny employer who violates section 2615 of this title . . .
    liable to any eligible employee affected for damages . . . and
    for such equitable relief as may be appropriate, including
    employment, reinstatement, and promotion."  29 U.S.C. �
    2617(a)(1) (emphasis supplied).  Paragraph (2) then provides
    that "[a]n action to recover the damages or equitable relief
    prescribed in paragraph (1) may be maintained against any
    employer . . . by any one or more employees . . . ." Id. �
    2617(a)(2).  An "eligible" employee is one who has worked for
    at least twelve months and for at least 1,250 hours of service. 
    See id. � 2611(2).  Pratt & Whitney argues "employees" cannot
    mean prospective employees because such employees are not yet
    eligible, and it cannot mean former employees because such
    employees are no longer eligible.
        Pratt & Whitney's argument necessarily assumes that
    the employee must be "eligible" at the time of the adverse
    action, rather than at the time the employee wishes to take
    leave.  This reading is far from mandated by the statute's
    language, and strikes us as unlikely.  The statute makes any
    employer "liable to any eligible employee affected" by a
    violation of the Act.  This language, read naturally, means
    that an employee must be "eligible" at some time and that he or
    she must have been "affected" by the employer's action.  The
    statute does not make clear whether an employee is "affected"
    by an adverse action at the time the action was taken or at the
    time he or she wanted to take leave, or indeed whether there is
    any required temporal connection between "eligible" and
    "affected."  In Duckworth's case, although Pratt & Whitney
    (arguably) took its adverse action after Duckworth left
  employment,   its action was, Duckworth argues, one designed to
    punish him for his past protected leave-taking (as a former
    eligible employee) or to prevent him from future protected
    leave-taking (as a prospective eligible employee).  Under this
    interpretation, Pratt & Whitney's actions "affected" Duckworth
    and Duckworth was eligible when he took his leave.
       Other language in the subsection, providing for
    equitable remedies, suggests a different reading: that the
    requirement of eligibility applies when the employee wishes to
    take leave, not when the employer takes an adverse action.  The
    remedies include "employment, reinstatement, and promotion." 
    These remedies are inconsistent with a definition of "employee"
    which applies only to current employees.  Instead, each of the
    three remedies most naturally refers to employees who are in
    different temporal circumstances -- one "promot[es]" a current
    employee, one "reinstate[s]" a former employee, and one
    "employ[s]" a prospective employee.  Cf. Robinson, 117 S. Ct.
    at 847 (making a similar observation).  Pratt & Whitney argues
    that reinstatement could be limited to those former employees
    who suffered the adverse action at a time they were still
    employed, and that the remedy of "employment" could also be
    limited to such former employees.  But that interpretation is
    certainly not the only plausible reading, and suffers from its
    own problems.  It renders the remedy of "employment" in 29
    U.S.C. � 2617(a)(1) essentially the same as the statutory
    remedy of "reinstatement" in that subsection, making the terms
    redundant.  It is a "'cardinal principle of statutory
    construction that it is our duty to give effect, if possible,
    to every clause and word of a statute.'"  Goncalves, 1998 WL
    236799, at *20 (quoting Bennett v. Spear, 117 S. Ct. 1154, 1166
    (1997)).
       We regard the statute as, at best, ambiguous
    concerning the temporal scope of the term "employees."  The
    statute does not plainly limit the term to current employees. 
    We also find nothing in the legislative history evincing a
    "clearly expressed legislative intention contrary to the
    statutory language" that would resolve the ambiguity in Pratt
    & Whitney's favor.  United States v. Rivera, 131 F.3d 222, 226
    (1st Cir. 1997) (en banc) (internal quotation marks and
    alterations omitted).  Finally, nothing in the "broader context
    of the statute as a whole," Robinson, 117 S. Ct. at 846,
    provides support for Pratt & Whitney's position that there is
    an unambiguously expressed intent of Congress to read the
    statute as it poses.  
       Consequently, the second stage of the Chevronanalysis comes into play: whether the Secretary's reading of
    the statute is a reasonable one.  See Massachusetts v. FDIC,
    102 F.3d 615, 622 (1st Cir. 1996).  The statute, read as a
    whole and in light of its purposes, leads to the conclusion
    that the Secretary's broad definition of "employees" is
    reasonable.
       First, the provision at issue, the enforcement
    section, makes any employer "who violates section 2615 of this
    title" liable to the affected employee in a civil action.  29
    U.S.C. � 2617(a)(1).  Section 2615 provides that it is unlawful
    "to interfere with, restrain, or deny the exercise of or the
    attempt to exercise, any right" provided by the FMLA, as well
    as to deny leave.  Id. � 2615(a)(1).  That section also makes
    it "unlawful for any employer to discharge or in any other
    manner discriminate against any individual for opposing any
  practice made unlawful" by the FMLA.  Id. � 2615(a)(2).   
    Finally, that section provides specific protection to "any
    individual" who gives any information in a proceeding "under or
    related to" the FMLA.  Id. at � 2615(b).  None of these
    provisions are limited to current, eligible employees; instead,
    they use terms like "any individual."  Of course, the statute's
    private right of action is limited to "employees," but that
    term is not inherently limited to current employees, and the
    scope of the "prohibited acts" section strongly suggests that
  it should not be so limited.  
       Indeed, the fact that � 2615 uses the term "any
    individual" is strong evidence that Congress drew a distinction
    when drafting the FMLA between the substantive right of leave
    and the right under the anti-retaliation provision to be free
    from employer interference with FMLA-protected leave rights.
    Such interference, Congress implicitly recognized, could be
    directed at individuals (such as prospective and former
    employees, or witnesses in FMLA proceedings) who might not be
    presently eligible for FMLA leave.  Although only "eligible
    employees" have substantive rights, it is unlawful for an
    employer to interfere with the rights of "any individual" that
    are protected under the Act.
       Other sections of the FMLA are likewise consistent
    with the Secretary's interpretation.  For example, covered
    employers are required under the FMLA to post a notice setting
    forth the FMLA's statutorily mandated leave policy "in
    conspicuous places on the premises of the employer where
    notices to employees and applicants for employment are
    customarily posted."  Id. � 2619.  It would be strange, as the
    Secretary notes, to require job applicants to be informed of
    rights if the employer is free to punish prospective and new
    employees for asserting such rights.
       Similarly, the prelude "findings and purposes,"
    contained in the FMLA at � 2601, say that "employment standards
    that apply to one gender only have serious potential for
    encouraging employers to discriminate against employees and
    applicants for employment who are of that gender."  This was
    Congress' rationale for mandating gender-neutral leave for
    family and medical purposes rather than mandating maternity
    leave for women who had recently given birth.  It would be
    inconsistent with Congress' concern about possible
    discrimination against prospective employees who intend to take
    leave to limit the Act's private remedies to current
  employees.  
        The Secretary of Labor notes a number of effects of
    the position taken by Pratt & Whitney which would undermine the
    stated purposes of the statute.  Under Pratt & Whitney's
    interpretation, an expectant mother who had worked for her
    employer for eleven months could be fired from her job if she
    notified her employer of her need for leave several months
    later, at a time when she would be an "eligible" employee under
    the FMLA.  Under Pratt & Whitney's interpretation, the employer
    would be permitted to fire her even though it could not deny
    the employee leave once she had been employed for twelve
    months.  Such a result, in the Secretary's view, would conflict
    with the Act's basic purpose of enhancing job security by
    protecting the right of eligible employees to take leave. 
    Pratt & Whitney's reading would also foster a perverse
    incentive to fire new employees or to refuse to hire
    prospective employees who were seen as posing a risk of
    exercising their rights under the FMLA, such as women of child-
    bearing age, frustrating the Act's basic purpose of
    "minimiz[ing] the potential for employment discrimination on
    the basis of sex by ensuring generally that leave is available
    . . . on a gender-neutral basis."  Id. � 2601(b)(4).  
        Pratt & Whitney's interpretation would also provide
    less protection for new employees or applicants who notify
    their employers of a need for future leave than those who
    conceal a need for leave, thus frustrating the implementation
    of the Act "in a manner which accommodates the legitimate
    interests of employers."  29 U.S.C. � 2601(b)(3).  It would
    also conflict with another section of the Act requiring an
    employee to give thirty days' notice for parental leave, if
    practicable.  See id. � 2612(e).  All of these considerations
    reinforce the reasonableness of the Secretary's interpretation.
        In light of Congress' purposes in enacting the FMLA,
    the agency's construction is a permissible one, i.e., one which
    "fills a gap or defines a term in a reasonable way . . . ." 
    Regions Hosp., 118 S. Ct. at 915.  Congress enacted the FMLA
    "'to help working men and women balance the conflicting demands
    of work and personal life.'"  Hodgens v. General Dynamics
    Corp., No. 97-1704, 1998 WL 248013, at *4 (1st Cir. May 21,
    1998) (quoting Price v. City of Fort Wayne, 117 F.3d 1022, 1024
    (7th Cir. 1997)).  The FMLA was Congress' response to what it
    considered significant social problems affecting families,
    including "'inadequate job security for employees who have
    serious health conditions that prevent them from working for
    temporary periods.'"  Id. (quoting 29 U.S.C. � 2601(a)(4)). 
    The Act does so by establishing a minimum leave standard which
    requires all covered employers to permit eligible employees to
    take up to twelve weeks of unpaid leave for certain family or
    medical purposes.  See id. at *5; see also S. Rep. No. 103-3,
    at 4 (1993), reprinted in 1993 U.S.C.C.A.N. 3, 6-7 ("The [Act]
    is based on the same principle as the child labor laws, the
    minimum wage, Social Security, the safety and health laws, the
    pension and welfare benefit laws, and other labor laws that
    establish minimum standards for employment.").
        As both Duckworth and the Secretary of Labor
    persuasively argue, the achievement of these objectives would
    be frustrated by adopting Pratt & Whitney's interpretation. 
    That interpretation would permit an employer to evade the Act
    by blacklisting employees who have used leave in the past or by
    refusing to hire prospective employees if the employer suspects
    they might take advantage of the Act.  See Robinson, 117 S. Ct.
    at 848-49 (deferring to EEOC's concern over potential
    retaliation in defining "employee" to include former
    employees); Town & Country, 516 U.S. at 90 (1995) (noting that
    "the Board needs very little legal leeway here to convince us
    of the correctness of its decision" extending the term
    "employee" in the NLRA to include prospective employees who
    were also union organizers).
        Pratt & Whitney's concerns, echoed by amici business
    groups, nonetheless are not without force.  They are concerned
    that the FMLA not be interpreted as establishing a special
    protected class of "FMLA leave-takers" in which any adverse
    action is presumed to be the result of ulterior motives.  This
  opinion does not lead to that result.    Duckworth's complaint
    states that it was his use of FMLA-protected leave which caused
    Pratt & Whitney to reject his application for employment.  To
    prevail, Duckworth will have to convince the trier of fact that
    Pratt & Whitney would have hired him if he had not taken FMLA-
    protected leave, i.e., that the reason it refused to hire him
    was because of his use of FMLA-protected leave in the past.  
       The Secretary of Labor's interpretation of the FMLA
    is certainly within the permissible range of policy options
    which Congress delegated to the agency.  If the regulations, in
    practice, prove unduly burdensome to employers, employers may
    seek to have the Department of Labor revise the regulations or
    seek relief from Congress, which expressly delegated to the
    agency such policy choices.
       Because Duckworth's complaint states a claim upon
    which relief may be granted, we reverse the district court's
    judgment and remand the case for further proceedings consistent
    with this opinion.  Costs are awarded to Duckworth.
```