Employer That Failed To Count Mandatory Overtime For FMLA Entitlement Violated The Act

by Steve Bogue

(402) 341-3070

When employers determine how much Family and Medical Leave Act (FMLA) leave an employee might be entitled to, it is crucial to keep in mind that the FMLA standard is 12 weeks of leave, and not automatically 480 hours. The number of hours an employee would be entitled to use would depend on the number of hours worked weekly by the employee. That calculation might not be as easy as it might seem. An Iowa employer recently learned that lesson the hard way when it was found to have interfered with an employee’s use of FMLA by not counting mandatory overtime hours toward the employee’s basic entitlement.

The employee in Hernandez v. Bridgestone Americas Tire Operations was granted intermittent leave to take care of a child with asthma. After the employee exhausted the 504 hours (12 weeks x 42 hours per week) entitlement that the company had awarded him, he was terminated when he missed additional days of work. In reviewing the termination and record of absenteeism, the trial court determined that although the employee had worked overtime prior to going on FMLA leave, that overtime was voluntary and could not be counted toward the employee’s allotment of hours over the 12 weeks of FMLA leave. However, the trial court then found that the company had violated the FMLA because during the course of calculating the number of hours that should be subtracted from the FMLA allotment, it subtracted missed hours during those overtime shifts which were voluntary in nature.

Upon appeal, the Eighth Circuit affirmed the trial court, but on a different basis. It noted that although the employee had originally voluntarily signed up for overtime, once his name was on the list, the overtime became mandatory. Thus, those mandatory hours should have been considered when determining the base number of hours the employee could use for intermittent leave during the 12 weeks of FMLA leave. Similarly, because the overtime which the employee missed while on FMLA leave was subject to the same “mandatory hours” rule, those hours all could have been deducted. However, by balancing the hours evenly on both ends, and by adding the mandatory hours into the calculation of available FMLA hours and then subtracting the mandatory work hours missed from that total, it found that the employee had not exceeded the number of hours to which he was entitled. The Eighth Circuit affirmed an award to the ex-employee in the total amount of approximately $76,000 and ordered reinstatement. An additional amount of $76,000 in attorneys’ fees was awarded.

The lessons for employers are clear:

1. In determining FMLA entitlement hours over the 12-week period, “voluntary” overtime worked by the employee should not be counted.

2. Conversely, if hours of overtime are mandatory, they should be counted for purposes of calculating the entitlement hours during the 12 weeks of FMLA hours.

3. If under an employer’s policies or union contract, an employee voluntarily places their name on an overtime list, and thereafter is required to work overtime, such overtime is considered mandatory.

4. If an employee misses voluntary overtime hours because of an FMLA-qualifying absence, those extra voluntary overtime hours should not be deducted from the FMLA entitlement. In those cases, a deduction should be made only for the employee’s regular shift hours missed.

5. If an employee misses mandatory overtime hours, they should be deducted from the total of the FMLA entitlement hours.

The essential inquiry in deciding whether hours are mandatory is whether the employee would have been required to work the overtime hours except for the taking of FMLA leave.

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