In general, the Family and Medical Leave Act (“FMLA”) provides that eligible employees may take twelve weeks of unpaid leave in a twelve-month period for the serious health condition of the employee, the employee’s spouse, the employee’s parents or the employee’s children. Thus, if an employee normally works five, eight-hour days a week, and the employee misses one eight-hour day because of an FMLA event, the employee uses one-fifth of a week of FMLA leave. FMLA permits an employer to convert these fractions to their hourly equivalent so long as the conversion equitably reflects the employee’s total normally scheduled hours. Although calculating the twelve-week period is simple enough when the employee works a regular schedule and takes leave in full day increments, complications arise when the employee’s work hours vary, and the employee takes intermittent leave. An example of this problem occurs when an employee is required from time to time to work mandatory overtime and misses the overtime because of an FMLA event.

The issue of calculating mandatory overtime as part of an employee’s FMLA leave entitlement was recently addressed by the United States Court of Appeals for the Eighth Circuit in Hernandez v. Bridgestone Ams. Tire Operations, LLC, 822 F.3d 1001 (8th Cir. 2016). In that case, an employee who was required to work mandatory overtime missed several overtime shifts to care for the serious health condition of his child. The employer included the mandatory overtime as FMLA time but did not include the hours when calculating the employee’s leave entitlement. After the employee had exhausted all his FMLA leave, and took subsequent, unexcused absences to care for his child, he was discharged because of his attendance. The employee sued the employer alleging that it had interfered with his FMLA entitlement. The Court of Appeals concluded that the employer was correct in counting the missed overtime hours against his FMLA entitlement. Notwithstanding this finding, the Court held that employer still had improperly interfered with the employee’s FMLA rights because, in calculating the number of hours to which the employee was entitled under FMLA, the employer did not include mandatory overtime. In other words, the employer counted the missed mandatory overtime in calculating FMLA usage but did not count mandatory overtime in calculating the amount of FMLA leave to which the employee was entitled.

In a situation like Bridgestone, if an employee’s schedule varies from week to week because of mandatory overtime to such an extent that an employer is unable to determine with certainty how many hours the employee would otherwise have worked but for the taking of FMLA leave, a weekly average of hours scheduled over the twelve months prior to the beginning of the leave (including any hours for which the employee took leave of any type) are to be used in calculating the employee’s leave entitlement.  For example, if an employee regularly scheduled to work 50 hours per week takes an entire week of FMLA leave, the whole 50 hours can be counted as FMLA time used, but that may or may not convert to one week of leave depending on how many hours are considered to be in the employer’s “work week.”  If the employer’s average work week is 50 hours, the FMLA allotment would also be one week; if the average week is 55 hours, the allotment would be .91 weeks; if the average week is 40 hours, the allotment would be 1.25 weeks.

Ultimately, the Bridgestone decision is an important reminder that employers who count missed overtime for usage purposes must also count overtime to calculate FMLA entitlement.

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Photo of Carl H. Gluek Carl H. Gluek

Carl focuses his practice on the representation of management in all phases of labor relations and employment matters. He routinely advises employers on all aspects of their relationships with employees, as well as with respect to matters concerning litigation prevention and human resources management. Carl has significant trial experience in federal and state courts in various jurisdictions on claims arising under the various federal and state labor and employment laws. He additionally represents employers with respect to complaints and charges filed with the EEOC and OCRC, NLRB and SERB, and with OSHA and the DOL. Carl also has significant experience in union avoidance techniques, strike disputes, collective bargaining and collective bargaining administration. Carl is also a frequent presenter at seminars and management training programs on a wide variety of topics including the Fair Labor Standards Act, Family and Medical Leave Act, Americans with Disabilities, harassment, and supervisor training.