The new FMLA math: 20 years divided by 12 months
May 9, 2008 by Sam NarisiPosted in: FMLA, In this week's e-newsletter, Latest News & Views
Courts have decided there’s a new way to figure out how to compute the employment period a worker needs to be eligible for FMLA leave. Get out your calendars and calculators.
Consider the real-life case of an employee who was rehired after having worked several years for the company in the 1980s. Less than a year after she started again, she suffered an injury and needed medical leave.
The request was turned down, because her current period of employment had lasted less than a year. She sued the company.
The court ruled in her favor. Why? Because there’s nothing in FMLA that says that the 12 months of employment have to be consecutive, and other courts, as well as the Department of Labor, have said that they don’t.
Also, there’s no time limit set for when periods of working do or don’t count. Therefore, a period of service that occurred even 20 years in the past (and, interestingly enough, before the FMLA was even passed) must be counted.
Cite: O’Connor v. Busch’s Inc.
Tags: 12 months, FMLA, leave eligibility, rehire
May 14th, 2008 at 11:57 am
You have to be kidding me!!!!
May 14th, 2008 at 12:19 pm
This redefines “ridiculous!”
May 14th, 2008 at 12:36 pm
What a nightmare! More bureaucracy, tracking and indirect costs for employers.
May 14th, 2008 at 1:38 pm
I agree with Catherine, but what do you do with the info of 20 divided by 12? 1.666 what? I guess I’m missing something very important in this equation.
The article states “courts”, what courts; and will this be in the new regs?
May 14th, 2008 at 2:17 pm
I assume that the employee referred to above had completed at least 1250 hours in the last 12 months — or had 1250 hours in the few months she had come back to work — averaging 40 hours per week in 31.25 weeks?
May 14th, 2008 at 2:39 pm
Right on. This might mean that we get to retain records for much longer than we do now.
May 14th, 2008 at 3:00 pm
The article doesn’t mention when the EE was rehired. What if you have a rehire whose previous personnel file is disposed of due to meeting/exceeding record retention timeframes and the current HR person was not with the ER at the time the EE was first employed? Was this question addressed in the court’s decision, or can anyone provide an answer? All I can say is wow…
May 14th, 2008 at 3:29 pm
But what about the requirement that the employee actually has to have worked 1250 hours in the prior 12 months?
May 14th, 2008 at 5:06 pm
Thanks to everyone for your comments. You’ve raised some great points.
The court (specifically, the federal district court for Michigan’s Eastern District) never brought up the 1250 hrs requirement. The employee’s most recent tenure lasted “approximately seven months,” so she could have worked just over 40 hrs/wk and had enough hours to meet to requirement. The number of hours might not have been mentioned because it was uncontested that she met that requirement. The 1250 hours have to be worked in one continuous 12 month period even if they don’t have to be employed for 12 continuous months.
As far as I know, this isn’t addressed in the new regs. Other cases have ruled the 12 months don’t have to be continuous, but this is the first time I’m aware of where the periods spanned this length of time. Maybe it will spur lawmakers to address the issue, since the law as it is doesn’t give a clear guidance.
Unfortunately, the court didn’t address the issue of record keeping. It looks like it was clearly known that the employee had worked for several years before, but we aren’t sure what would happen if one party were called on to prove whether or not the 12 months of work occurred.
A copy of the case can be found here:
http://www.ceridian.com/www/content/10/12487/14787/14796/oconnorcase.pdf
Again, thanks for the comments, and I hope I’ve cleared some things up.
Sam Narisi
Editor
HRLegalNews.com
May 15th, 2008 at 9:48 am
Wow! This just means more work on the Human Resources Departments. How can you not follow the 1250 hours required.
May 19th, 2008 at 4:33 pm
As many have mentioned, it would be useful to know how long back an employer must track past employment…in the case where company records had been destroyed, it makes sense that the employee should have the burden of proof through tax returns.