To be eligible for, an employee “must have been employed for at least 1,250 hours of service” with his or her employer during the 12 months prior to the commencement of the leave. That seems simple enough.
But in the world of, nothing is as simple as it seems.
For example, some employees and their lawyers have argued that any time spent out on FMLA leave shouldn’t count when determining FMLA eligibility. They say the 12-month “look back” used to count hours of service should be expanded so the only time that counts is the last 12 months spent working.
How to call time out
It would work like this: Employers trying to figure out whether the employee was eligible for FMLA leave would first look at whether the employee had already taken FMLA leave recently. If she had, they would not count those weeks or months as part of the 12-month period when adding up hours actually worked.
Say an employee took two months of FMLA leave in January and February 2009, and returned to work part time for the rest of the year. On Jan. 1, 2010, she requested more FMLA leave. Because she hadn’t worked at all in January and February, she could show that she had worked only 1,000 hours in 2009. Not eligible, right?
But what if the time she spent out on FMLA leave were excluded from the 12 months being counted? What if the employer had to add November and December 2008 into the hours-worked calculation? In our example, that might add enough hours to hit the 1,250 minimum.
12 months … plus 56 days
Fortunately for FMLA administrators, that argument didn’t persuade the 7th Circuit Court of Appeals, which covers Illinois employers.
In Bailey v. Pregis Innovative Packaging, Inc. (No. 09-3539, 7th Cir., 2010), the 7th Circuit declined to interpret the term “service” in an expansive fashion. It concluded that the statutory period requirement couldn’t be tolled due to earlier leaves of absence during the 12 months before an employee requests FMLA leave.
Because the plaintiff, Michelle Bailey, fell short of the 1,250-hour threshold for statutory protection, the 7th Circuit found that the employer, Pregis, properly discharged her for violating itspolicy. It affirmed an Indiana District Court’s decision granting summary judgment for Pregis.
Bailey claimed that the absences that led to her termination were pregnancy related and thus FMLA protected. Therefore, she said, Pregis couldn’t fire her without violating her.
But the evidence established that Bailey failed to meet the statutory requirements for the absences that formed the basis of her termination. Timecards showed that she had worked fewer than 1,250 hours in the 12 months preceding her pregnancy-related absences. She was on FMLA protected leave for 56 days during that time.
Bailey argued that she was entitled to calculate the 12-month period by adding the time she worked during the 56 days before the start of the 12-month period at issue. Measured by this extended period of time, she noted, she was well within the statutory time requirements and eligible for FMLA leave.
The 7th Circuit rejected Bailey’s argument. Noting that the 1,250-hour required minimum must be satisfied before an employee is eligible for FMLA leave, the 7th Circuit refused to dilute the statutory requirement to incorporate hours worked before the 12 months preceding the leave that caused Bailey to be fired.
Because there was “no basis for such a contortion of the statute,” the court rejected Bailey’s claim that Pregis interfered with her FMLA rights.
The 7th Circuit also denied Bailey’s claim that Pregis retaliated by failing to remove an attendance point in accordance with its no-fault attendance policy. Under the policy, while the attendance points were removed by the employer a year after they were assessed, Pregis did not count FMLA leave time toward that time period.
In reviewing the claim, the 7th Circuit first ruled, “wiping a point off the absenteeism slate is indeed an employment benefit.” But Bailey was not entitled to that benefit because the 12-month period entitling her to the removal of attendance points did not accrue by the time her FMLA leave started. Because Bailey didn’t accrue “absenteeism forgiveness when on leave,” she had no right to have her absenteeism points removed.
Refusing to dilute FMLA
While Bailey raised some creative arguments, the 7th Circuit ultimately rejected her attempt to end-run the FMLA statutory requirements.
By refusing to dilute the 1,250-hour requirement to include hours used for purposes other than work, the 7th Circuit upheld the well-established principle that an applicant for FMLA leave must have actually worked 1,250 hours in the 12 months preceding the employee’s request for leave.
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