Calculating employee leave entitlements and usage rates under the Family and Medical Leave Act (FMLA) can be complicated, especially in situations where an employee routinely puts in overtime hours and the employee is requesting intermittent or reduced schedule leave.
FMLA regulations issued by the Department of Labor (DOL), which enforces the law, require employers to calculate each employee’s FMLA entitlement based on his or her actual workweek, which may include certain overtime hours. More specifically, DOL takes the position that involuntary overtime hours — those that the employee is required to work — are part of an employee’s actual workweek and must be included when calculating his or her leave entitlement. In contrast, DOL says that purely voluntary overtime need not be counted toward an employee’s FMLA entitlement.
A recent ruling by the U.S. Court of Appeals for the Eighth Circuit provides some insight on the important distinction between “voluntary” and “involuntary” overtime for FMLA leave eligibility purposes. In Hernandez v. Bridgestone Americas Tire Operations, No. 15-2042 (8th Cir. May 13, 2016), the plaintiff sued after he was discharged for violating the employer’s absence policy.
Although the plaintiff had worked a number of overtime hours prior to taking FMLA leave, his employer did not count them because it considered them to be voluntary. At the same time, the employer did count missed overtime shifts against its attendance policy. According to the Eighth Circuit, the employer in this case was required to include the overtime when determining the plaintiff’s FMLA leave eligibility, which would have resulted in no violation of the attendance policy.
A copy of the Eighth Circuit’s decision in Hernandez is available here.
Members of the Equal Employment Advisory Council (EEAC) can read more here.