Eligible employees are entitled to 12 weeks of FMLA leave
per year for qualifying reasons. But how
are those 12 weeks counted? Incorrectly
answering this question got an employer in trouble when it only counted the
employee’s straight time in determining how many hours of FMLA leave the
employee was entitled to take.
In a recent decision, the 8th Circuit Court of
Appeals (which covers Minnesota) held that an employer unlawfully interfered
with an employee’s FMLA rights when he was terminated for excessive absenteeism
after the employer claimed he had exhausted his FMLA leave. When a need for overtime arose, employees
could volunteer, and the employer would schedule overtime based on the
volunteers. Once an employee was
scheduled for this overtime, it was no longer voluntary. This means that missed scheduled overtime
shifts due to a reason covered by the FMLA were properly counted against his 12
week FMLA entitlement. But, it also
means that his overtime should have been taken overtime into account when
calculating how many hours of leave he was entitled to take, i.e., he was
entitled to more than the 480 hours (12 weeks * 40 hours/week) he would have
been entitled to if he did not work any overtime.
If an employee works the same number of hours each week, it
is not too difficult to calculate both their FMLA entitlement and their FMLA
usage, but it becomes more difficult where, as in this case, the employee’s
schedule varies. However, the Department
of Labor’s regulations interpreting the FMLA provide for what to do in such a
situation, stating that if an employee’s schedule varies to such an extent that
the employer cannot determine with any certainty how many hours the employee
would otherwise have worked if they hadn’t taken FMLA leave, then the
employee’s average hours over the past 12 months should be used in calculating
the employee’s leave entitlement.
For
questions regarding administration of FMLA leave, contact James Sherman at jasherman@wesselssherman.com or
952-746-1700.
