FMLA regulations require 1,250 hours to qualify for leave

Where do FMLA regulations stand on standby, on-call, and military hours?

FMLA regulations say that hours on standby don’t count

Pilot couldn’t apply on-call time to reach required 1,250 hours

Employees on standby aren’t accumulating working hours for FMLA purposes, according to a recent court decision in Utah.

The case involved an airline pilot who during certain hours was required to be ready for unexpected flight duty. Within these reserve hours, she had to be available by phone, be able to report to the airport within an hour and avoid drinking alcohol.

When she asked for FMLA leave to care for her son, the airline turned her down. She sued, but the court threw out the case, saying she didn’t qualify.

Layovers count…

In the prior 12 months, the pilot recorded 400 hours of duty and training time, plus 364 hours of layovers.

The court said it would assume the layover hours applied toward FMLA eligibility because during layovers she had to be away from home, and was thus under restrictions that interfered with her personal life. That was good enough for the hours to count under the Fair Labor Standards Act (FLSA), which provides the FMLA’s accounting framework.

…But reserve time doesn’t

But even counting the layover hours, she had only 764 hours of FMLA time, short of the 1,250 hours FMLA regulations require to establish eligibility for leave.

The pilot said her reserve time should count, too, but the court disagreed. It said the restrictions of not being able to drink and having to be near a phone weren’t strict enough to make the time compensable, according to FMLA regulations.

Application: You don’t have to give FMLA leave to everybody who asks. Make sure to check FMLA regulations first.

Cite: Knapp v. America West Airlines, No. 2:01CV793, D. Utah, 11/18/05.

-On-call hours are void in terms of FMLA

Regulations say limits on personal activity don’t always make time compensable

Good news if you’re among the many employers who keep employees on call ready to respond to duty requirements: On-call time doesn’t necessarily have to be paid or count toward their FMLA eligibility.

That point was reinforced recently by a federal appeals court ruling on a case in Utah. The employee, an airline pilot, requested FMLA leave to care for her ill child but the employer refused.

The employee sued. The employer claimed she hadn’t worked 1,250 hours in the previous 12 months to qualify. The employee said with her on-call time, she had 1,900 hours, way over the minimum required by FMLA regulations.

But the court said her on-call time didn’t count. So she had no FMLA case.

One-hour requirement

While on call, she had to answer the phone, be ready to report to the airport within an hour of getting a call and abstain from alcohol. She said because of the one-hour rule, she couldn’t make doctor’s appointments, go to the movies, grocery shop or get her hair done.

But none of this curtailed her personal activities enough for the time to count as working hours under the FLSA, which governs FMLA regulations, the court said.

In this case, the employer guaranteed her a minimum payment for on-call time. Even that didn’t make the time FMLA-eligible, the court ruled. Nor did the employer have to give a guarantee.

What you can do

This case suggests you can place fairly substantial limits on what workers are allowed to do while on call, without incurring FLSA or FMLA obligations.

But note: FLSA/FMLA cases differ widely. You can’t conclude from this one that on-call employees won’t ever be due compensation or FMLA time.

Cite: Knapp v. America West Airlines, No. 05-4322, 10th Cir., 11/24/06.

FMLA regulations and military service

They stood ready to serve – now companies have to stand behind them

Employees who are members of the National Guard or military reservists who were called to active duty under President Bush’s post-September 11 national emergency declaration should have their active-duty time counted toward their eligibility to take time off under FMLA.

The DOL recently issued a memorandum clarifying its position on the rights of returning military personnel. Under the Uniformed Services Employment and Reemployment Rights Act (USERRA), returning service members are entitled to all the benefits of employment they would have obtained had they been continuously employed.

“Recognition of the rights… established by USERRA will ensure that those who stood ready to serve our nation can return to their civilian jobs with all the legal benefits that they have earned,” said Frederico Juarbe, Jr. from the Veteran’s Employment and Testing Service.

Those benefits include weeks toward FMLA eligibility; so you should remember to include them.