By Peter Susser and George Wood, Littler Mendelson, P.C.
You have spent weeks agonizing over the Department of Labor’s (DOL) new Fair Labor Standards Act (FLSA) overtime rule, ultimately determining that you will need to move a number of employees from exempt to nonexempt status to remain complaint. Feeling good about your work, you kick back to enjoy your newfound leisure time, only to wonder: “How does the change in FLSA status for these employees affect their FMLA leave usage rights? For example, once these employees become nonexempt, how do I calculate their FMLA entitlement for intermittent leaves?”
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Realizing that significant FMLA issues exist with this change, you drag yourself back to FMLA regulations to determine how this issue can be hammered out by the December 1, 2016, deadline for implementing the overtime rule.
Guiding FMLA principles
The starting point for the analysis of how the change in exemption status affects an employee’s FMLA entitlement is with the regulations themselves. Several principles within regulations guide the analysis:
1.) FMLA bases its leave calculations on work weeks, not on hours.
Key to the FMLA analysis is the rule that “[t]he actual workweek is the basis of leave entitlement.” (29 CFR § 825.205(b)(1)). Thus, an employer may not simply take 40 hours per week and multiply that by 12 to reach an hours limit. Rather, the employer must calculate the leave entitlement based on weeks, not hours.
For example, “if an employee who would otherwise work 40 hours a week takes off eight hours, the employee would use one-fifth (1/5) of a week of FMLA leave. Similarly, if a full-time employee who would otherwise work eight hour days works four-hour days under a reduced leave schedule, the employee would use one-half (1/2) week of FMLA leave.”
Thus, employers need to focus on the use of weeks—or partial weeks—of FMLA leave, not hours. As the comments to Section 825.205(b)(1) reiterate, “FMLA leave does not accrue at any particular hourly rate, and . . . the specific number of hours contained in the workweek is dependent upon the hours the employee would have worked but for the taking of leave.”