Wednesday, January 22, 2014

When is 1,250 not 1,250? Hours worked versus hours paid for FMLA eligibility

For an employee to be eligible to take leave under the FMLA, the employee must have been employed for at least 12 months, and have at least 1,250 “hours of service” during the previous 12-month period.

Hours of service means hours actually worked by the employee. It does not mean hours paid. Thus, paid non-working time—such vacations, holidays, furloughs, sick leave, or other time-off (paid or otherwise)—does not count for purposes of calculating one’s FMLA eligibility.

What does this rule look like in practice? Saulsberry v. Federal Express (6th Cir. 1/10/14) provides an example. In support of his claim that Fed Ex wrongfully denied leave under the FMLA, Pernell Saulsberry relied upon a document entitled, “Federal Express Corporation Employee Monthly Trend Report.” That report listed his “HR PAID TOT” for the previous 12 months as”1257.29.” The same report, however, listed Saulsberry’s “HR WKD TOT” as “1109.29.” At deposition, Salsberry admitted that the “Paid Tot” included paid time off during which he performed no services for Fed Ex, and the “Wkd Tot” accurately reflected the number of hours he had actually worked. Thus, because he worked less than the required 1,250 hours, the 6th Circuit concluded that Fed Ex legally denied his request for FMLA leave.

This case illustrates the importance of accurate time records. Whatever time tracking and payroll system you use, it must the ability to differentiate between time paid and time worked. It saved Fed Ex from an FMLA claim in Saulsberry, and it could likely save you too if an employee is on the 1,250-hour FMLA bubble.