A recent ruling from the Second Circuit Court of Appeals (“Second Circuit”) has generated a lot of buzz – and potential problems for employers – regarding what hours must be counted in determining whether an employee is eligible for leave under the Family and Medical Leave Act (“FMLA”). To be eligible for FMLA leave, an employee must have worked at least 1,250 hours during the previous 12 month period. 29 U.S.C. §2611(2)(A)(ii). The rule sounds simple enough, but the Second Circuit’s ruling makes this a much more onerous and complicated issue for employers, especially regarding work from home or away from the workplace.
Donnelly v. Greenburgh Central School District
In Donnelly v. Greenburgh Central School District, 691 F.3d 134 (2nd Cir. 2012), Donnelly, a former high school teacher, sued his school district alleging that he was denied tenure in retaliation for taking FMLA leave for gallbladder surgery. The school district defended the case by arguing that Donnelly was not eligible for FMLA leave because he had not worked at least 1,250 hours during the previous 12 months. The district relied on the collective bargaining agreement (“CBA”) between the teachers’ union and the district to calculate the number of hours Donnelly worked. The CBA provided that the maximum work day for teachers was 7.5 hours, which is one hour longer than the school day. The district multiplied this number by the number of days Donnelly worked during the previous year and found that he worked 1,247 hours – only three hours shy of qualifying for FMLA leave. Donnelly argued that he typically worked 1.5 hours before and after class and that additional time should be included in calculating his FMLA eligibility. The trial court disagreed and relied upon the maximum work day in the CBA in finding that Donnelly was not eligible for FMLA leave because he could not produce reliable evidence showing that he actually worked 1.5 hours each day before and after class performing work that was integral to his teaching job. Accordingly, the trial court dismissed his FMLA retaliation claim.
The Second Circuit reversed the trial court and found that there was a factual dispute for a jury to decide regarding whether Donnelly worked enough hours to qualify for FMLA leave. The Court first noted that under the FMLA regulations, because the district did not maintain accurate records of the actual hours Donnelly worked, the district had the burden of proving that Donnelly did not work 1,250 hours and was, therefore, ineligible for FMLA leave. Furthermore, the Court held that the CBA did not govern how many hours Donnelly worked for purposes of FMLA eligibility. The Court emphasized that all of the hours Donnelly worked must be counted, regardless of the work day provision in the CBA. Borrowing language from the Fair Labor Standards Act, the Court held that only those hours where Donnelly performed activities that were an integral and indispensable part of his job as a teacher should be counted.
Perhaps the most important part of the Court’s ruling deals with counting work from home. The Court held that, especially in the case of teachers who grade papers and plan lessons from home, there is no preclusion from counting time for work at home in calculating FMLA eligibility, as long as the work is an “integral and indispensable” part of the job.
What This Means for Employers
In the union context, employers may not automatically rely on the maximum work day in a CBA in determining if an employee is eligible for FMLA leave. What matters is the number of hours an employee actually worked performing tasks that are integral and indispensable to the job.
If an employer does not have an accurate and reliable way of accounting for an employee’s hours, the employer will bear the burden on summary judgment of proving that the employee did not meet the eligibility requirement, which is a very difficult burden. This will be especially difficult when dealing with salaried employees and FLSA-exempt employees who typically do not record their hours or clock in and out.
Work from home may be counted in determining FMLA eligibility. We live in an era when employers expect employees to be accessible at all times because of cell phones and smart phones. If you expect an employee to respond to email or calls after hours, you may be required to count those hours in determining FMLA eligibility. Furthermore, even if an employer has no way of accounting for work from home, that work may nonetheless be counted in determining FMLA eligibility.