Calculating and counting down an employee’s 12 weeks of Family and Medical Leave (FMLA) is usually a pretty clear-cut matter. However, the math can get much more complicated when the employee works regular overtime and has to miss some of those extra shifts due to intermittent FMLA leave.
Fortunately, a recent federal court decision provides a very helpful roadmap for how to navigate the issue of calculating FMLA for employees working regular overtime.
Employee Exhausts FMLA and Gets Fired
The case involves Bridgestone Americas Tire Operations, whose continuous production requires a great deal of regular overtime. Employees are allowed to express their interest in working an overtime shift, and if they are selected for the shift, they must report for work or be counted as having incurred an “incident of absence” under the company’s attendance policy. If the employee misses the shift because of an FMLA reason, no absence is incurred but the overtime hours are deducted from the employee’s FMLA balance.
Employee Lucas Hernandez was approved for intermittent FMLA leave to care for his son who suffers from asthma. In the space of about nine months in 2011-2012, Hernandez missed work fifty-four times, including six overtime shifts. Most of the absences (but not all) were attributed to FMLA. On July 10, the company informed Hernandez that he had exhausted his 12-week FMLA allotment. Therefore, when he missed his overtime shifts on July 11 and 12, even though they otherwise would have been for FMLA reasons, those absences were counted against him. As a result, he was issued steps 2 and 3 of the company’s progressive discipline system.
When Hernandez failed to report for his regular shifts on July 13 through July 15, again because of his son’s illness, he progressed to the 4th disciplinary step, which was termination. Hernandez then sued the employer under various legal theories, including interference with his FMLA rights.
How Voluntary Overtime Becomes Mandatory
The trial court ruled in favor of Hernandez on his FMLA claim, concluding that since employees are allowed to choose whether or not they want to work overtime, the extra shifts are voluntary. According to a Department of Labor (DOL) regulation, voluntary overtime hours missed for FMLA reasons may not be deducted from the employee’s FMLA balance. Therefore, Hernandez should still have had FMLA time available to him at the time he was terminated for absenteeism.
Bridgestone appealed the judgment to the 8th Circuit Court of Appeals (in which Minnesota sits), which flat-out disagreed with the trial court on the voluntary nature of the overtime. They noted that once the employee is selected to work an overtime shift, they are required to do so or face disciplinary action. This turned a voluntary decision into a mandatory obligation and it was therefore appropriate for Bridgestone to deduct Hernandez’s missed overtime hours from his FMLA entitlement.
Employers Must Predict the Future – Here’s How
So, the FMLA deduction was proper and the termination stands, right? Not exactly. Even though the missed mandatory overtime can be deducted from Hernandez’s FMLA balance, the appeals court declared that he had not been properly credited in the first place with enough FMLA hours because the expected overtime was not taken into account. The court explained that the DOL “intended for hours missed for FMLA-qualifying reasons to be deducted from the employee’s FMLA-leave entitlement only if those hours were included in the employee’s leave allotment.” In other words, if the overtime was considered as part of Hernandez’s regular schedule for purposes of deducting FMLA, it also had to be considered when determining how much FMLA he would be granted in the first place.
The company argued that the overtime was variable and they would never be able to predict with precision how much overtime he would work. Therefore, it was impossible to determine how much FMLA credit he should receive. The court disagreed, noting that the DOL had already provided for this circumstance in a regulation that stated:
If an employee’s schedule varies from week to week to such an extent that an employer is unable to determine with any certainty how many hours the employee would otherwise have worked (but for the taking of FMLA leave), a weekly average of the hours scheduled over the 12 months prior to the beginning of the leave period (including any hours for which the employee took leave of any type) would be used for calculating the employee’s leave entitlement.
As a result, Hernandez should have been credited with more FMLA time than he actually received because his regular schedule included the anticipated overtime hours. Had this been done properly, he would still have had some FMLA hours left and he would not have been subject to termination for his final absences. As such, the court affirmed the judgment is Hernandez’s favor but for reasons very different from what he might have expected based on the lower court’s ruling.
Bottom Line
This decision makes it very clear that mandatory overtime needs to be counted when determining how much FMLA time an employee can take in a 12-month period. After all, if an employee regularly works an extra 10% of an ordinary week, they would be entitled to an additional 10% of their FMLA allotment too.
Counting hours ahead of time is far better than counting back pay after the fact.