Crunching the Hours Worked Number Lets Employer Avoid FMLA Interference Claim

September 12, 2017

No matter which way an employee tried to count her hours worked, she came up short of the requisite 1,250 hours worked during the 12 months preceding her requested taking of leave, she was not an eligible employee under the Family and Medical Leave Act (FMLA), a federal district court in Iowa ruled.

Her firing for accumulating too many absences when she did not report to work the day she requested leave to care for her adult son, who had been shot and was hospitalized in intensive care, was not FMLA interference.

Record of leave and absences. In June 2013, the employee began working as a general laborer in Armour-Eckrich Meats’ (AEM) meat production plant. Late in that year, the employee injured her shoulder at work and took FMLA leave because of that injury; in February 2014, she used about five weeks of leave for shoulder surgery and, in July 2015, she used about five additional weeks of leave for a second shoulder surgery. In August 2015, the employee left work early due to shoulder pain, and her employer assessed a point against her under its attendance policy for leaving work early, giving her a final warning based on her accumulated absences.

Son’s emergency hospitalization. On October 24, 2015, the employee’s adult son was shot and admitted to a hospital intensive care unit; upon learning of the shooting she immediately went to the hospital and attempted to contact her employer between 3:00 and 5:00 a.m. on October 25, but no one answered, so she left messages. At 8:00 a.m., she spoke with HR, informing the company that her son had been shot, he was in surgery, she was at the hospital, and the nurses had told her things "did not look good." She acknowledged her absence problem and asked if she could use leave to care for her son. HR checked and told her she could not use leave because her son was over 18 years old and was not disabled. When the employee said she could not leave her son, HR told her she could come in for half a day and receive only "half an occurrence," but if she did not report to work, she would have incurred seven absence occurrences and would be fired. The employee remained at the hospital with her son, and AEM fired her that same day.

Actual hours worked. The resulting FMLA interference litigation turned on only a single element of the employee’s prima facie case: whether she was an eligible employee, as AEM contended she had not worked at least 1,250 hours during the previous 12-month period. The court found that AEM was correct. The relevant regulation, 29 C.F.R. § 815.110(c)(1), citing 29 C.F.R. part 785, says that "any accurate accounting of actual hours worked under FLSA’s principles may be used."

The employee claimed that she actually worked 1,250.4 hours between October 26, 2014, and October 26, 2015, but AEM said that between October 27, 2014, and October 26, she had a total cumulative amount of 1,320.7 hours—but those hours included paid holidays (56) and vacations (40), as well as other hours (floating holidays—16) that would not count for FMLA eligibility purposes. In the employer’s view, she worked only 1,209.6 "regular hours."

Clock-in time. Some of the discrepancy resulted from the employee pointing to her clock-in times; however, under the CBA, although employees could clock in up to 15 minutes before a shift, they were not allowed to begin work until their shift officially began. The employee had not identified anything in the record establishing that she had worked and was paid for the periods between her clock-in/clock-out times and the beginning and end of each scheduled shift during the preceding 12 months. Thus, those added hours calculated from the clock-in/clock-out times did not count toward the requisite 1,250 hours because they were not hours actually worked.

Half-hour meal breaks. Half-hour meal breaks were automatically deducted from hours the employee worked, and she pointed to meal breaks she worked through during eight days when she was training to obtain her forklift license. Under 29 C.F.R. § 785.19, meal times may be considered "hours worked" if the employee worked through the meal period. Even though the company contended the employee did not follow the correct procedure for notifying it that these were hours worked, the court accepted this allegation as true, bringing her total number of hours worked up to 1,213.6.

Employer-directed medical attention. The employee also tried to include the hours she had spent at (or traveling for) medical appointments during the 12 months before she was fired, which her employer said did not count as hours worked. But under the FLSA, "[t]ime spent by an employee in waiting for and receiving medical attention on the premises or at the direction of the employer during the employee’s normal working hours on days when he is working constitutes hours worked" (29 C.F.R. § 785.43). This could have helped the employee—except that the 115.7 hours for which she had been paid under AEM’s workers comp policy when she left work to attend medical appointments related to her work injury were already included in the total 1,209.6 "regular hours."

As for the 56.87 additional hours she claimed she had spent either at or traveling for workday appointments, the appointments were prior to her scheduled workday and not during "normal working hours" on days when she was working, so none of those hours counted. Finally, the 32.32 hours spent at or traveling for medical appointments while she was on workers’ comp leave, although "at the direction of [her] employer," also did not count because, again, they did not occur on days she was working. Even if they had, noted the court, she would still come up short by more than four hours. Because the employee was not eligible due to not having worked the 1,250-hour minimum during the 12 months preceding her request for leave, the court found her FMLA interference claim failed as a matter of law.