Service time and FMLA eligibility
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Service time and FMLA eligibility

FMLA regulations only count time in “company service”

Tom Croke looked his boss right in the eye. “You must be out of your gourd,” he said. “You can’t fire me. I called in on Tuesday morning and told you I needed two days off to care for my dad. He’s sick – he needs me!”

“Sorry, Tom.” said his manager, Sam Roberts. “The fact is, you don’t have FMLA eligibility. You were absent without leave.”

Tom glared at Sam. “I’ll bet you couldn’t wait to get rid of me!”

Sam shrugged. “I’m not going to pretend to like you. I fired you two months ago. But the arbitrator made us reinstate you.”

“You’re just as wrong this time,” growled Tom.

“As the saying goes,” said Sam, “I’ll see you in court.”

Wrongfully fired, then reinstated

During his two-year tenure at Upland Manufacturing, Tom filed seven grievances through his bargaining unit. His latest one claimed he was wrongfully discharged from his job.

The arbitrator agreed and reinstated him with a two-month unpaid suspension. The arbitrator also required Tom’s employer to pay him all the wages and benefits he’d lost during the grievance process.

The day after Tom returned to work he called in to say that he needed time off to care for his sick father. When he reported back to work two days later he was fired.

Tom claimed he had eligibility under FMLA regulations: he’d worked full-time for more than one year and worked more than 1,250 hours during the 12 months preceding his leave request.

However, to arrive at 1,250 hours, he’d added the hours he was compensated by the arbitration award to the hours he worked prior to his dismissal.

The employer argued that back pay shouldn’t count toward FMLA eligibility.

Who was right?

The decision

The employer was right.

The court decided that the compensation Tom received from the arbitration award as back pay for a wrongful discharge couldn’t count toward his 1,250-hour requirement under FMLA regulations.

Service time is the only time counted for FMLA eligibility

In court, Tom argued that he shouldn’t be penalized because his employer made the mistake of wrongfully discharging him.

After all, had he been working instead of contesting his unlawful discharge, he’d have qualified for FMLA leave. He claimed that the arbitrator awarded him back pay and full benefits for the period that he was pursuing his grievance against the company. Why shouldn’t that award include qualifying time for FMLA eligibility?

There are other circumstances under which an employee isn’t physically present at work, but is still qualifying for FMLA eligibility. When an employee is on vacation, for example.

Even accrued vacation time that hasn’t been used may count toward FMLA eligibility. When an employee takes a sick day, the day off counts toward FMLA eligibility too.

Aren’t sick days and vacation time the same as the days that Tom wasn’t working? The court said, “No.”

In service of the company

On the surface it appeared that Tom had a good case. But after reviewing the FMLA and the Fair Labor Standards Act, the court concluded that only “hours actually worked in the service and at the gain of the employer” counted as “hours of service” that may be applied toward FMLA eligibility.

That means that, in the eyes of the law, vacation days (whether used or accrued) and sick days are “in service of the company.”

But Tom’s days away from work were neither “in the service” nor “at the gain of” his employer.

Cite: Plumley v. Southern Container, Inc., U.S. Court of Appeals, 1st Circuit, 01-2747, 2/13/02. Fictionalized for dramatic effect.

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