Q: We have an exempt, managerial employee who in this past year took all 12 weeks of FMLA leave, and six additional weeks of unpaid leave. He also was intermittently absent for digestive problems to the tune of about four weeks. We’re now in a new FMLA year and he is requesting FMLA leave again. Is he even eligible for FMLA leave since he didn’t work 1,250 hours?
A: Exempt employees pose a particular dilemma for employers under the FMLA because the FMLA regulations effectively presume that they always are eligible for FMLA leave, at least from an “hours worked” standpoint, and the employer has the burden to prove otherwise. Keep this key provision in mind from the regulations (at 29 C.F.R. 825.110(c)(3)):
In the event an employer does not maintain an accurate record of hours worked by an employee, including for employees who are exempt from FLSA’s requirement that a record be kept of their hours worked . . . the employer has the burden of showing that the employee has not worked the requisite hours. (My italics, not DOL’s)
Very few employers maintain hours worked for their exempt employees. So, it may be exceedingly difficult to establish that the employee above has not worked the requisite 1,250 hours required by the FMLA. Using this employee as an example, let’s assume he typically would have worked around 1900 hours for the year (~48 weeks x 40 hours/wk). He took 22 weeks of leave in the previous FMLA 12 months, which accounts for about 880 hours (22 weeks x 40 hours/wk). 1900 – 880 = 1020 hours worked
This falls a fair amount short of the requisite 1,250 hours required under the FMLA. Does this simple math prove that this exempt employee is not eligible for FMLA leave? Not yet. Check out my tips below.
This FMLA regulation is particularly difficult to apply to school teachers. A recent case, McArdle v. Town of Dracult/Dracult Public Schools (pdf), highlights this issue. Here, a middle school teacher was going through a divorce, which caused an onset of depression and anxiety. As a result, he worked about 660 hours during one school year. When he sought FMLA leave the following school year, his school district said “No soup for you,” and denied his FMLA leave (eventually leading to his termination). The employee later filed an FMLA interference claim.
The district’s clever attorneys argued that, even taking into account the number of hours the employee graded papers and wrote journal articles outside of regular work hours, it was entirely implausible that the teacher worked anywhere close to 1,250 hours. The court agreed with the clever attorneys and dismissed the employee’s FMLA claims.
Insights for Employers
A couple of things to keep in mind when it comes to employee eligibility for FMLA leave:
- Where an exempt employee’s eligibility for FMLA leave is in question, keep in mind that employers must clearly demonstrate the employee did not work 1,250 hours. In the example of our employee in the question posed above, can you show, for instance, that the employee regularly works a typical 40-hour a week schedule in the office and then performs little or no work outside regular work hours? Can you show that he never sends or reviews work email outside work hours? Or that he never uses his cell phone for work after hours? Is your exempt employee covered by a collective bargaining agreement or other employment agreement that sets out hours worked? Does your employee waste oodles of useless time blogging about topics like medical leave? [Bite your tongue!] These questions and others like it are helpful to better assess the total hours worked by your employee.
- Remember that eligibility is tested every time the employee requests leave for a “different FMLA-qualifying reason.” In other words, if the reason for leave is the same and the employee previously was eligible within the same FMLA year, the employee is entitled to take leave in this instance. However, if the employee requests leave for a new qualifying reason in the same FMLA year, or if it’s for the same reason within a new FMLA year, the employer should re-test eligibility. See 29 C.F.R. 825.300(b).
Who ever said FMLA was boring?