Does FMLA eligibility accrue if your not being paid?

by on January 26, 2009 · 0 Comment POSTED IN: HR Info Center

FMLA regulations count hours worked; not hours paid.

Caryn Prentice tapped at Controller Jack Fitzgerald’s office door. “Is this a good time to talk, Jack?” she asked.

Jack waved her in. “What’s up?” he said. Caryn worked as a medical technician at a group practice. A week earlier she’d requested FMLA medical leave for minor surgery. This morning she learned she’d been turned down.

Arrived early every day

“There must be some mistake,” she said. “Thing is, I’ve used up all my sick days and personal time, and I need FMLA leave. I don’t understand why my request was denied.”

Jack typed Caryn’s name into his computer and pulled up her file. “I’m sorry, but as you know, you need to have worked at least 1,250 hours in the past year to have FMLA eligibility. According to our records you have logged only 1,196. See?”

Caryn looked at the screen and recalled that she’d signed time sheets for each pay period. “I think I know what the problem is,” she said. “I arrive 15 minutes early every morning to turn on the x-ray machines, get the office ready and make coffee. I don’t get paid for that time – and that’s okay, I’m not asking you to pay me for it – but I should get FMLA credit for it.”

“No one says you have to be here early,” argued Jack. “It’s your choice.”

Caryn huffed. “But everyone knows if I didn’t, we wouldn’t be ready to receive patients when we open our doors. Oh, and also, the time I spent training to keep my certification current isn’t on these sheets.”

“You did that training on your own time, not our time,” said Jack.

Caryn became indignant. “I’ve spoken with an attorney who advertises on TV. He says all those hours count for FMLA – including the training. I’ll sue if I have to!”

They couldn’t agree and the case ended up in court.

Did Caryn have FMLA eligibility?

Yes. A court found that Caryn had FMLA eligibility

In reaching its decision, the judge drew distinction between voluntarily arriving 15 minutes before the start of a shift to make coffee and arriving early to turn on diagnostic equipment and prepare to receive patients.

Hours unpaid, but not unworked

Even though she wasn’t paid for those 15 minutes, she did perform duties during that time that were central to daily operations.

While no law says her employer had to pay her for that time, it does say that the time counts toward FMLA eligibility.

The FMLA looks beyond what’s written on time sheets.

The court ruled that the training Caryn completed to keep her license up to date counted toward her FMLA eligibility as well.

It was true that she completed the training on her own time, and that she wasn’t compensated for the time she spent in class.

However, because Caryn needed the training under her belt in order to be certified, and because she had to stay certified to keep her job, the time she spent in training applied toward FMLA eligibility.

When the training time and the pre-shift prep time were added to her hours worked, Caryn easily exceeded the 1,250-hour requirement.

This case is a reminder: When calculating FMLA eligibility, the law looks beyond what’s written on a timesheet – and so should you.

Under FMLA, “unpaid” doesn’t necessarily mean “unworked.”

Cite: Kosakow v. New Rochelle Radiology Associates, U.S. Court of Appeals, 2nd Circuit. No. 00-7392.

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