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For hourly employees, unauthorized extra time counts toward FMLA eligibility

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in FMLA Guidelines,Human Resources

Employees have to work at least 1,250 hours in a year to qualify for FMLA leave. They also must have been employed for a total of one year. Thus, while many part-time employees may qualify for FMLA leave, others won’t because they haven’t met those thresholds.

But now some hourly employees and their attorneys are trying a new approach. They’re claiming that employers failed to count so-called off-the-clock work toward FMLA eligibility—and arguing for a recalculation that includes those additional hours. In some cases, that may be accomplished by adding a few minutes of uncompensated time per day.

It’s another reason to make sure no one is working off the clock.

Recent case: Yajaira Strohl worked for a preschool as an aide. Her job required her to come in at 8 a.m. and set up the toddler room and then work until 4 p.m. She had summers off.

When she tried to take FMLA leave, the preschool told her she had only worked 1,174.75 hours in the benefit year and wasn’t eligible.

She sued, alleging she had come in five to 10 minutes early every morning to make sure the door was open and the room ready by 8. Plus, she said she sometimes worked through lunch.

The court agreed that the unpaid time counted toward her FMLA eligibility. It then added up the extra minutes—and found Strohl still came up a few hours short. (Strohl v. Brite Adventure Center, No. 08-CV-259, ED NY, 2010)

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