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Minutes—not just hours—count when figuring FMLA eligibility

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in FMLA Guidelines,HR Management,Human Resources

When it comes to getting paid, every minute matters in wage-and-hour cases. Does that same rigid rule apply to the FMLA?

The U.S. 7th Circuit Court of Appeals in Chicago has now said you had better use your stopwatch when it comes to counting work time that applies to FMLA eligibility. Every minute counts toward the 1,250-hour minimum employees have to work in a year in order to take FMLA leave.

The case is Pirant v. U.S. Postal Service, No. 07-1055, 7th Cir., 2008.

Trouble at the post office

Antoinette Pirant started working for the U.S. Postal Service in 1993. She had a tumultuous employment history. She was terminated at least four times and received several multiple-day suspensions for poor attendance. Each time she was terminated she begged her supervisors to change their minds and just suspend her instead. Surprisingly, they did.

Pirant entered into a “last chance agreement” in March 2001. The agreement stated, “It is agreed by all the parties to this agreement that any violation of the terms or conditions of this agreement will result in the re-issuance of a removal. It is further understood that this settlement agreement constitutes an absolute last chance to remedy any conduct and attendance problems.”

That’s a pretty clear agreement. No more lateness or she would be shipped out.

Pirant was then absent twice without an excuse. The last time was on Sept. 28, 2001. Three days later, she received a 30-day notice of termination. She again begged her boss to hold off the inevitable until Dec. 10. She was successful, but knew that even with a perfect attendance record during that period, her employment was going to end.

During the grace period, on Oct. 5, Pirant’s supervisor ordered her to clock out two hours early because she was insubordinate. She did, but complained to an investigator who followed up with an internal investigation—which was to remain open for some time.

Action shifts to the ER

Two months later, late on the evening of Dec. 5, Pirant called her employer and left a message with a co-worker that she could not make it to work the next day. She came to work on Dec. 7, but reported she was not feeling well.

On Dec. 10, Pirant went to the local hospital emergency room, complaining of carpal tunnel syndrome and arthritis in the knee. The ER doctor’s note directed her not to work until Dec. 17.

On Dec. 21, the investigator finally got back to her and told her to file a formal grievance for restoration of back pay if she believed she had been wrongfully ordered to clock out two hours early back in October. She had 15 days to file a grievance, but failed to do so.

Then the post office fired Pirant for violating her last-chance agreement. A few days later, she submitted a note to the post office, stating that she had been absent that one day in December because of her arthritic knee.

Every minute matters

Pirant sued, alleging she had been fired for missing work for an FMLA-covered reason. She argued the December absence should not have been counted against her.

Now, because Pirant had missed so much work, her employer wondered whether she had even worked enough hours to be eligible. Therefore, the post office conducted a thorough audit of her time sheets. You guessed it. She had worked either 1,248.8 or 1,249.8 hours within the past 12 months.

Pirant had fallen short of the required 1,250 hours by either 72 or 12 minutes. Therefore, she was not eligible for FMLA.

Pirant appealed and begged the appellate court to reverse. She argued that the two-hour suspension in October should go toward her FMLA clock, even though she did not work the two hours or pursue the grievance. She also argued she was entitled to extra minutes for the time it took her to put on and take off her gloves, shoes and work shirt.

The appellate court rejected all of Pirant’s arguments and affirmed the lower court. Counting every minute, the court noted that the “statutory text is perfectly clear”—1,250 hours means all 75,000 minutes.

Illinois follows letter of the law

Federal courts in Illinois are strict when it comes to the letter of the FMLA law. Illinois courts have long held that, in order for an employee to be eligible for FMLA leave, her or she must squarely meet all the requirements of the statute, including the 1,250-hours threshold.

What are best practices for prudent Illinois employers? Remember, employee timecards, time sheets, call-in records, doctors’ notes and even performance improvement plans have all become critical evidence used by both parties to argue eligibility or ineligibility in FMLA cases. Keep good records.

And in addition to a calendar, keep a clock in your office. When it comes to the FMLA, every minute counts.

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