This content was originally published in January 2010. For the latest FMLA regulation changes, visit our FMLA article archives or try our practical FMLA compliance guide.
An employee is eligible for leave under the federal Family and Medical Leave Act (FMLA) if, among other things, he or she has worked for the employer for at least 1,250 hours during the 12-month period before requesting leave.
Whether the employee had done this was the principal issue on appeal for the U.S. Court of Appeals for the 3rd Circuit (Erdman v. Nationwide Insurance Company, No. 07-3796, (9/23/09)).
What Happened
“Belinda” began working for the Nationwide Insurance Company in 1980, and held various full-time positions there during the next 18 years. In 1998, Belinda asked to work part-time so she could care for her daughter, who was born with Down syndrome. The court tells us that Nationwide granted this request, but gives no further details.
Four years later, she was allowed to switch to a 4-day workweek. This rendered her nonexempt under FLSA (i.e., she was entitled to overtime).
According to Belinda’s supervisor, “Diana,” early in 2002, Belinda regularly worked extra hours outside the office, and Diana allowed her to use them as “comp” time. That is, she allowed Belinda to take extra hours off without pay in return for the extra hours worked outside the office.
Over the next 12 months, the court explained, there was a series of communications between Belinda and her supervisor relevant to the issue of what Nationwide knew or could be presumed to have known about the total number of hours Belinda worked.
Early in 2002, Diana informed Belinda that she should “put in the hours that …you’re supposed to put in and nothing more than that.”
In September 2002, Belinda e-mailed “Gretchen,” who had replaced Diana as her supervisor, and asked her whether she was still allowed to work extra hours for use as comp time. There is no record of any response by Gretchen.
According to Gretchen’s subsequent testimony, at a meeting with Belinda in January 2003, Gretchen made no objection to her use of comp time. In January 2003, Gretchen e-mailed Belinda criticizing her work. One of the criticisms was for Belinda allegedly taking overtime without Gretchen’s approval.
Soon after this, Belinda’s part-time position was eliminated, but she accepted Nationwide’s offer to work full time. Belinda may have been unhappy about having to work full time and with Nationwide’s subsequent denial of her annual request for an August vacation (she was accustomed to using this time to prepare her disabled child for school).
In the next few weeks, according to Nationwide, Belinda engaged in various acts amounting to employee insubordination, something Belinda disputed.
In April 2003, soon after she began working full time, Belinda submitted paperwork requesting FMLA leave from July 7 to August 29. Human Resources responded to the request by stating, “As far as the FMLA, I probably don’t see any problems with this.” On May 9, however, Nationwide fired Belinda because of her alleged behavioral problems.
Alleging that she was actually fired for requesting FMLA leave, Belinda brought an action in a federal district court in Pennsylvania alleging, among other things, that she was fired because she requested FMLA leave.
Nationwide alleged, among other things, that Belinda had not accumulated sufficient hours to qualify for leave under FMLA.
What the Court Said
The district court granted Nationwide summary judgment on the issue of how many hours Belinda had accumulated, finding there was no genuine issue of material fact requiring a determination by a jury and the law.
The law is as follows:
An employee is eligible for FMLA leave if the employee has worked at least 1,250 hours for the employer in the 12 months before making the request.
All work that “the employer knows or has reason to believe … is being performed” counts toward the threshold requirement (see 29 CFR s.785.12).
Thus, although the employer does not have actual notice of off-site work, constructive knowledge will suffice.
According to Belinda, in the 12-month period before she asked for FMLA leave, she worked 1,295.25 hours, if one includes the 118.5 hours she worked from home.
The district court counted only 41.50 of the 118.50 hours Belinda worked from home, leaving Belinda 28.75 hours short of FMLA’s threshold requirement.
One of the things that influenced the district court was the fact that her supervisor had informed Belinda that she should “put in the hours that … you’re supposed to put in and nothing more than that.”
The district court assumed that this meant Nationwide had specifically warned Belinda that she should no longer continue to work outside the office to accrue comp time, and, therefore, it couldn’t be argued that Nationwide had constructive knowledge she was continuing to do that.
The 3rd Circuit Court of Appeals disagreed and held that a reasonable jury could decide that the point of the warning was that Belinda should not put in for overtime, but she could still continue to accrue comp time.
Therefore, a jury could conclude that Nationwide had constructive knowledge of the hours that Belinda worked at home to accrue comp time until February 10, 2003, when Gretchen for the first time specifically told Belinda that she could no longer use extra hours worked for comp time.
The appeals court noted that, counting all the hours Belinda worked at home before February 10, 2003, Belinda was eligible for FMLA leave.
So, the issue for the appeals court was what Nationwide communicated to Belinda and it sent the case back to the district court for a jury trial on this issue.
Point to Remember
If the employer had specifically and unequivocally communicated to Belinda early on that comp time was no longer permissible, it would not still be involved in a lawsuit.