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J. Hours Worked and the FMLA

 

How "Hours Worked" Affects FMLA Eligibility Determinations

 

In order to determine whether an employee has met the 1250-hour and twelve-month service requirements, the employer must know what hours and time on the payroll to include. The DOL applies essentially the same rules for determining hours worked to the FMLA as it does when verifying an employer's compliance with the overtime statutes under the FLSA.

 

Periods of time during which the employee is completely relieved of duty are not counted toward the 1250-hour requirement, even if the employer compensates such time under its fringe benefit policies. The 1250-hour requirement counts only hours actually worked. The types of periods excluded from the computation would include:

  1. paid or unpaid vacation leave

  2. paid or unpaid sick leave

  3. paid or unpaid parental leave

  4. paid or unpaid holidays

  5. other personal leave

  6. FMLA leave periods

  7. furloughs or suspensions

However, any week during which an employee is maintained on the payroll, even if the employee is off work for that week, must be counted toward the twelve-month service requirement. DOL guidance on what to include and exclude from the 1250-hour and twelve-month requirements is found in Wage-Hour Opinion Letter FMLA-70, August 23, 1995.

 

The same letter ruling also makes clear that for FMLA purposes, there is no distinction between FLSA overtime and non-overtime hours; "an hour is an hour is an hour."

 

Wage-Hour Opinion Letter FMLA-78, February 14, 1996, notes that full-time teachers are presumed to meet the 1250-hour test, in view of the time spent away from school preparing lessons and tests and grading students' work. The employer may attempt to rebut that presumption, but can do so only with specific work records or documentation of interviews with the employee.

 

In an interesting letter ruling impacting upon the temporary help industry, Wage-Hour Opinion Letter FMLA-37, July 7, 1994, stated that a temporary help firm and its client employer "are considered joint employers for purposes of determining employer coverage and employee eligibility" under the FMLA, referring to the applicable regulation at 29 C.F.R. 825.106(d). Thus, ruled DOL, "the time that the employee was employed by the temporary help agency would be counted towards the eligibility tests." This ruling was supported in a 1997 court decision, Miller v. Defiance Metal Products, Inc., 989 F.Supp. 945, 4 WH Cases2d 613 (N.D. Ohio 1997). The court concluded that reclassification of an employee from temporary to "permanent" does not alter the FMLA time frame used in determining whether an employee has worked at least twelve months, and that the time frame for a temporary help firm employee who is later hired by the client employer begins to run from the date that the employee is first assigned to work at the client's facility.

 

According to a policy memorandum issued by the DOL on July 22, 2002, if any employees go on military duty-related leave and return to employment, they must be credited with the hours they would have worked but for the military duty, as well as the months they spent in such duty. DOL indicated that in most cases, the calculation would be based upon the schedule the employee had worked in the period before going on military leave. In other words, the employer must count the hours that the employee would have worked toward the 1,250-hour requirement, and it must count the actual number of weeks or months spent in such duty toward the 12-month service requirement. Thus, any time an employee returns from military leave, the result could be that he or she will be eligible for FMLA leave if they need it upon their return.

 

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