A few years ago I had the privilege of arguing the winning side in Ricco v. Potter (6th Cir. 7/27/04). Ricco held that "make-whole relief awarded to an unlawfully terminated employee may include credit toward the hours-of-service requirement contained in the FMLA's definition of 'eligible employee,'" reasoning that "[t]he goal of a make-whole award is to put the employee in the same position that she would have been in had her employer not engaged in the unlawful conduct; this includes giving the employee credit towards the FMLA's hours-of-service requirement for hours that the employee would have worked but for her unlawful termination."
Pirant v. U.S. Postal Service (7th Cir. 9/4/08) illustrates the import of the Ricco holding. the USPS terminated Pirant for attendance violations. She claimed that the USPS violated the FMLA by terminating her for missing work because of an arthritic knee. One part of one day of work proved dispositive to her FMLA claim. On October 5, 2001, Pirant’s supervisor ordered her to clock out two hours early, claiming that she was being insubordinate and not doing her work. Pirant clocked out and went home two hours early. While she complained to a Postal Service Dispute Resolution Specialist, who advised that she could file a formal grievance for restoration of back pay if she still thought she had been wrongfully ordered to clock out two hours early. Pirant, however, never filed a timely grievance. The USPS secured dismissal of her FMLA claim because she had only worked 1249.8 hours in the preceding 12 months. Thus, she was 12 minutes short of the law's requisite 1,250 hours.
This case is a good lesson for companies that something as trivial as a grievance over 2 hours of missed work could end up being very significant. If Pirant had grieved that two-hour suspension and had won, she would have been over the 1,250 hour threshold. In that case, instead of fighting over her eligibility for FMLA leave, the employer would have been fighting over the motivation for her termination, a much harder case. However, because she failed to grieve that suspension, it was a moot point:
Pirant also argues that she should be credited for the two hours she alleges she missed when her supervisor improperly ordered her to clock out early. Citing the Sixth Circuit’s decision in Ricco v. Potter, 377 F.3d 599 (6th Cir. 2004), Pirant argues that hours not worked because of a wrongful suspension or discharge count as hours of service for FMLA purposes. Ricco does not help her here....
Here, Pirant was advised of her right to file a formal grievance and request for back pay after the October 5, 2001 clock-out incident. She did not do so—not, at least, until after she was terminated and long after the 15-day regulatory filing period had expired. Nor did she pursue any challenge to the dismissal of her belated grievance as untimely.... By failing to pursue a formal challenge to her suspension, Pirant has accepted that she is not entitled to either compensation or FMLA credit for the lost two hours.
[Hat tip: Workplace Prof Blog]