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May/June 2007 Counting
FMLA “Hours of Service” Is Not as Easy as 1-2-3
Mutchler was a nurse. After working a regular schedule for a number of years, Mutchler transferred into her employer’s special “Weekender Program.” The program was designed to encourage nurses to work undesirable shifts by giving them more pay. Participating nurses worked two 12-hour shifts every weekend. In return for working these shifts, they were paid for 68 hours of work every two weeks—instead of the 48 they actually worked. Mutchler requested FMLA leave. Like every employer should, the hospital checked to see if she had met the FMLA’s “hours of service” requirement. To be an “eligible employee” under the FMLA, an employee must have been employed by the employer “for at least 12 months” and “for at least 1,250 hours of service with such employer during the previous 12-month period.” 29 U.S.C. § 2611(2)(A). Unfortunately, the employer checked Mutchler’s payroll records (which reflected payment for 68 hours of work every two weeks) instead of her actual time records (which reflected 48 hours actually worked every two weeks). To make a long story short, the hospital mistakenly told Mutchler she was eligible for FMLA leave when, in fact, she was not. The hospital recognized this mistake while Mutchler was out on FMLA leave. The human resources director immediately notified Mutchler of the mistake and advised her that the hospital would honor the FMLA leave for two additional weeks. The HR director also warned that if Mutchler took leave beyond those two additional weeks, she would only receive non-FMLA leave. Well, Mutchler’s leave lasted more than the two additional weeks. When she returned to work, she found the hospital had placed another nurse in her Weekender Program slot. When the hospital refused to bump the other nurse out of the program, Mutchler sued. Mutchler argued the hours credited through the Weekender Program should be counted towards the 1,250 minimum—primarily because she relied on the hospital’s (mistaken) original statement that she was eligible for FMLA leave. The court disagreed and found her ineligible for FMLA protection because she had not actually worked the required 1,250 hours. Employer
Notes: (1) U.S. Department of Labor (DOL) regulations state, “If the employer confirms eligibility [for FMLA] at the time the notice for leave is received, the employer may not subsequently challenge the employee’s eligibility.” 29 C.F.R. § 825.110(d). Under this regulation, Mutchler should have won her lawsuit. Not so. Several federal courts have held this particular DOL regulation invalid because the DOL exceeded its legal authority when issuing it. So, from the very outset, this case involves a situation where the “real law” contradicts the statutory interpretations published by the enforcing governmental agency. Confused yet? (2) It is not always true that an employee must “actually work” the 1,250 hours needed to meet the “hours of service” requirement. Some federal courts—including the Sixth Circuit Court of Appeals that issued the decision in the Mutchler case—hold that if an employee is terminated but is later reinstated as part of a remedy designed to “make the employee whole,” then the employee is considered to have “actually worked” the hours he or she “would have worked” had the employee not been illegally terminated. Other federal courts disagree with this analysis. So, if you’re faced with this question, the applicable law depends on the geographic location of the court that will ultimately consider it. Be safe and consult your company’s lawyer. (3) If you’re not frustrated yet, consider this: paid vacation and holiday days taken by the employee are NOT counted as “hours worked” when calculating the FMLA’s 1,250 “hours of service” requirement but ARE counted as “employment” when calculating the FMLA’s “months of employment” requirement. With respect to the months of employment requirement, if an employee is maintained on the payroll for any part of a week (including any period of paid or unpaid leave during which compensation or other benefits are provided by the employer or by workers’ compensation), that week counts as a full week of employment. (4) When reading the statute, many people interpret the 12-month employment requirement to demand 12 consecutive months of employment with the employer. To the contrary, DOL regulations state the 12 months of employment need NOT be consecutive and that periods of previous employment with the same employer count toward the requirement. The first federal appeals court case addressing this issue was decided in December of last year. In Rucker v. Lee Holding Company, the First Circuit Court of Appeals agreed with the DOL’s regulation—even when the period of time between the employee’s first stint of employment with the employer was 5 years prior to the subsequent employment. (5) Federal courts are split on the issue of whether an employee who is ineligible for FMLA leave (due to the “months in service” requirement) at the outset of a leave of absence can become eligible during that absence. So, if you’re faced with this question, the correct legal answer again depends on the geographic location of the court that will ultimately consider it. Conclusion Kaz Kikkawa,
Constangy, Brooks & Smith, LLC, Nashville, Tennessee. |
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Many
human resources professionals dread the federal Family and Medical Leave
Act (FMLA) because it is truly one of the most complicated employment
laws out there. A recent decision from the United States Court of Appeals
illustrates how a basic requirement that seems straightforward—and
should be straightforward—is actually not. Mutchler v. Dunlap
Memorial Hospital (6th Cir. 2007).