Employees are eligible forif they have worked for their employer for at least one year. But that service doesn’t have to be consecutive months. Employees who quit and return to work for the same employer can add up their service to reach the one-year threshold as long as their break in service isn’t longer than seven years.
Because employers are responsible for determiningeligibility, you must have a process in place that counts past service, and it’s not enough to follow Pennsylvania’s standard requirement to keep employment records for four years.
When it comes to the FMLA, you’ll need to retain records for at least seven years.
Advice: Whenever you hire someone, check your records of past employees. If your new employee is a rehire and last worked for you within seven years, be ready to credit that service if FMLA eligibility ever becomes an issue. If you don’t do that, and wind up denying FMLA leave to an eligible employee, you may have to pay double damages.
Recent case: Pamela Bowyer worked for Dish Network from July 22, 2002, until Dec. 23, 2002, when she quit. Then she was rehired on April 10, 2006. She worked until Oct. 31, 2006, when she was hospitalized with chest pain she feared might be the beginning of a heart attack.
Her supervisor began the termination process because he believed she was unable to work and wasn’t eligible for FMLA leave. As far as he knew, she had worked for the company for only six months.
He sent the paperwork to HR, which checked her service records in the company’s computer tracking system, which showed she had 11 months of service. In reality, Bowyer had worked for Dish Network between 52 and 53 weeks altogether.
Bowyer received her termination letter while still in the hospital. Then she learned that her health insurance had been canceled, leaving her with a large medical bill.
She sued, alleging she had been terminated in violation of the FMLA.
The court agreed that she was eligible based on her one year of service. Then it ruled that Dish Network’s inability to track her service meant it hadn’t acted in good faith. That makes Bowyer eligible for doubled damages. (Bowyer v. Dish Network, No. 08-1496, WD PA, 2010)
Final notes: Don’t blindly rely on software to track FMLA eligibility. Double-check, especially if it’s a close case. You should also ask all applicants on the application form whether they have previous service with the company and, if so, what those dates of service were.
Remember, the employer is responsible for correctly tracking FMLA eligibility, including maintaining accurate records for length of service and hours worked in the preceding year.
HR professionals are expected to know the law and administer it fairly and in good faith.
Caution! Finally, don’t forget that you may be personally liable for any FMLA violations. That means your personal assets may be seized to satisfy a judgment. That should be reason enough to learn all you can about the FMLA.
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