3-hour FMLA discrepancy points to employers’ record-keeping duty

Sometimes it’s not easy to keep accurate records of employees’ hours worked, especially if you’re dealing with people who don’t punch a clock.

But if you fail to do so, there may be consequences, as a New York State school district recently learned.

A teacher felt he’d been denied tenure by district administrators who illegally took FMLA-protected absences into account in his evaluations. So he sued for interference with his FMLA rights.

A questionable calculation
The school district, using the duration of the work week set by its agreement with the teachers’ union, calculated the teacher worked 1,247 hours in the 12 months prior to his leave. That, the district argued, meant he came up three hours short of eligibility for FMLA leave and wasn’t entitled to the absences in question.

A federal court agreed with the district. But an appeals court turned the decision around, in the teacher’s favor.

Why? The teacher maintained that he worked at least 1.5 hours before and after class every day – 30 minutes more than the teachers’ contract stipulated. What’s more, he said most teachers in the district did the same.

Burden of proof
The school district said he couldn’t prove this. But the appeals court said that wasn’t the point. If an employee makes a reasonable claim to have worked certain hours, under the FMLA it’s up to the employer to prove he or she didn’t.

Takeaway: For FMLA purposes, you may want to have your people, hourly and salaried alike, sign off weekly or monthly on the amount of time they’ve worked. Such records may also be valuable in case of a wage/hour dispute.

Cite: Donnelly v. Greenburgh Central School District #7, No. 11-2448, 2nd Cir., 8/10/12.