FMLA leave and exempt employees: Dallas FMLA attorney explains

The Family Medical Leave Act (FMLA) protects the right of employees to twelve weeks of medical leave in a twelve month period so long as the employee has worked 1,250 hours in the current or prior calendar year and the employee works at a work location in which the employer employs at least fifty employee in a seventy-five mile radius of the employee’s work location. FMLA leave is a growing source of employment claims due to: the complexity of FMLA requirements; its interaction with the Americans with Disabilities Act; its interaction with workers compensation; and employer unwillingness to grant medical leave.

A key requirement is that the employee satisfies the 1,250 hour requirement before becoming eligible for FMLA protections. Although the 1,250 hour requirement seems like a simple issue, it actually causes a number of claims because the FMLA statute and accompanying regulations establish a complex methodology for counting hours that often includes quirky or unusual employment situations. One area in which the 1,250 hour requirement is particularly unusual is when employees are exempt, salaried employees.

Exempt employees and FMLA

Exempt employees are not paid on an hourly basis and the Department of Labor tends to discourages employers from tracking the hours of exempt employees to avoid the appearance that the exempt employees are really hourly employees being denied overtime and minimum wage protections. That puts employers in a difficult position of trying to determine whether exempt employees have met the 1,250 hour requirement when they do not track exempt employee work time. The FMLA regulations speak to this issue, although employers may not find much satisfaction in the regulation. 29 C.F.R. 825.110(c)(3) indicates:

In the event an employer does not maintain an accurate record of hours worked by an employee, including for employees who are exempt from FLSA’s requirement that a record be kept of their hours worked . . . the employer has the burden of showing that the employee has not worked the requisite hours.

Because employers tend not to track those hours, the employer must prove the employee has not met the 1,250 hour requirement. How can an employer do that? Not easily. Some exempt employees work a fairly standard forty hour week in the office. In these cases the employer’s ability to make a compelling argument is easier. However, many exempt employees work more than forty hour and may work from home or other remote locations. “Work” is not just what the employee performs from a desk or computer.

Calculating time under FMLA

If the employee answers calls while away from the office, that time is work for the purposes of calculating hours. The employee may spend additional time contemplating an answer to those communications or perform other work in response to the communication. Certain forms of travel time may also be counted as working hours. Disproving that the employee worked additional hours may be extremely difficult and granting FMLA leave may be cheaper and easier than risking an FMLA lawsuit even if the employer ends up prevailing.

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