A recent decision by the 2nd U.S. Circuit Court of Appeals highlights the importance of tracking employees’ hours. That court reversed a district court’s judgment against a New York high school English teacher who claims he was denied tenure in retaliation for taking seven days of leave following gallbladder surgery — FMLA leave for which the school district says he was not even eligible because he was three hours short of the Family and Medical Leave Act’s statutory minimum. The case is Donnelly v. Greenburgh Central School District No. 7, No. 11-2448-cv (Aug. 10, 2012).
Background
The U.S. District Court for the Southern District of New York had sided with Greenburgh Central School District, arguing that: (1) Edward Donnelly was not eligible for FMLA leave because, as calculated under his union’s collective bargaining agreement, he had worked only 1,247 hours — three hours fewer than the 1,250 hours required by statute law — in the previous year; and (2) even if he was eligible, he could not show that the school district acted unlawfully in denying him tenure.
The appeals court, however, interpreted things differently. It examined the facts both sides presented and held that Donnelly presented sufficient evidence — namely, “his record of strong performance reviews which only began to change after his medical leave,” and “his arguably FMLA-protected leave [that] was held against him in the tenure process” — to warrant a jury trial.
In defense of the shortfall of hours worked, Donnelly posited that he and “most teachers regularly work in excess of a total of one hour before and after class,” and that he “typically worked a total of 1.5 hours before and after class every day.”
Under the collective bargaining agreement between the teacher’s union and the school district, the regular working day for all teachers shall not exceed seven hours and 15 minutes, so technically, per the terms of the agreement, Donnelly had worked precisely 1,247 hours or seven hours and 15 minutes per day for 172 days during the 12-month period before he took the leave.
“This is not a case in which an employee with a 9-to-5 job with defined office tasks claims to engage in mysterious unspecified additional activities off-site,” the circuit judges opined. “The CBA acknowledges that job-required tasks that are part of a teacher’s primary work responsibility are regularly performed by teachers outside the hours in which the students are in the classroom.”
For additional information about leave and disability, see Thompson’s employment law library, including the Family and Medical Leave Handbook.