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Unpaid overtime meets the FMLA: The two-headed monster waiting to trip you up

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in FMLA Guidelines,Human Resources

To be eligible for FMLA-protected leave, employees must have worked at your organization “for at least 1,250 hours of service during the 12-month period immediately preceding the commencement of the leave.” They also must have been employed at your organization for at least 12 months.

As a result, many part-time employees won’t qualify 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. In some cases, they may meet that magic 1,250-hour threshold if they can prove they worked just a few minutes of uncompensated time each day.

This is another reason to make sure no one is working off the clock.

Recent case: Yajaira Strohl, a teacher’s aide at a New York preschool, was required to arrive 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 school told her she’d worked only 1,174 hours in the benefit year, so she wasn’t eligible.

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

The court agreed that the unpaid time counted toward her FMLA eligibility. It added on all those extra minutes. Still, she came up a few hours short. (Strohl v. Brite Adventure Center, No. 08-CV-259, ED NY, 2010)

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