Comments on: The new FMLA math: 20 years divided by 12 months

By: Albert Roark

Albert Roark — Thu, 08 Jan 2009 19:53:00 +0000

Kathy and Sheryl,
Thank you for clarifying my misconception.

By: Sheryl

Sheryl — Wed, 07 Jan 2009 19:50:07 +0000

I occasionally have time to read these, and often find the responses more amusing than the articles themselves. The new FMLA regs that become law on Jan. 16, 2009 specifically include a reg regarding breaks in employment. While twelve months of employment need not be consecutive, generally any period of employment prior to a continuous break in service of seven (7) years or more need not be counted. So after Jan. 16, 2009, a 20 year break would disqualify employees from qualifying for FMLA until they have again accrued twelve (12) months of employment.

By: Kathy

Kathy — Wed, 07 Jan 2009 17:59:47 +0000

Albert -
The 1250 hours in the past 12 months is only one of the requirements to determine if a person is eligible. The other one is that the employee must have worked for the company for at least 12 months – and they do not have to be consecutive months – and that’s the problem. However, the new regs DO address this and now the employer will only have to review the 7 years prior to the date leave is to begin, in most cases. If an employee has a break in sercvice that is longer than 7 years, the prior service does not need to be counted toward eligibility for FMLA unless the break in service was due to National Guard or Reserve military service, or if there was an agreement when the break in service occurred that the employer would later hehire the employee. Since the employer is not required to retain an employee’s personnel records longer than the 3-year FMLA record retention period, the burden is on the employee to prove prior service if the employer has not retained the documentation. (825.110 in the Regualations) Well, it’s better than 20 years, anyway!! : )

By: Albert Roark

Albert Roark — Wed, 07 Jan 2009 14:36:01 +0000

My apologies 1250 hours, not 1260

By: Albert Roark

Albert Roark — Wed, 07 Jan 2009 14:35:26 +0000

This is confusing…so what if the employee worked for you 20 years ago. It is the 1260 hours in the previous 12 months that determines if you are eligible for FMLA…right? I am just wondering what does anything over a 12 months ago have to do with qualifying for FMLA. If the guy met the hours requirement then 2 months or 7 months employed do not matter. I thought there were court cases in the past that dismissed the time employeed as being part of the equation.

By: Heather Dykes

Heather Dykes — Mon, 19 May 2008 20:33:25 +0000

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.

By: Theresa Daivs

Theresa Daivs — Thu, 15 May 2008 13:48:30 +0000

Wow! This just means more work on the Human Resources Departments. How can you not follow the 1250 hours required.

By: Sam Narisi

Sam Narisi — Wed, 14 May 2008 21:06:04 +0000

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

By: Angela Henderson

Angela Henderson — Wed, 14 May 2008 19:29:58 +0000

But what about the requirement that the employee actually has to have worked 1250 hours in the prior 12 months?

By: Sonia McDonald

Sonia McDonald — Wed, 14 May 2008 19:00:36 +0000

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…