Managers at America West warned Penny Bachelder that her attendance was a problem. She had taken lots of time off in the previous two years under theAct ( ) for various reasons. And in February 1996
she missed three weeks soon after her boss told her to improve her attendance. She submitted two doctor's notes for that three-week hiatus.
America West finally fired her after she took a day off in April 1996 to care for her sick baby. By then she had been absent 16 times since being counseled about her attendance.
American West said Bachelder's firing was legal because her February 1996 absences weren't covered by the FMLA. Reason: America West used the retroactive "rolling" year rule to calculate her eligibility, and she had exhausted her leave for that 12-month period.
The problem: American West's employee handbook didn't clearly tell employees how the company calculated FMLA time limits. Federal law lets companies choose one of four different ways to measure 12-month eligibility.
America West's handbook said only that employees would be entitled to 12 weeks of"within any 12-month period." This lack of clarity means Bachelder could choose whichever method benefited her the most. The result: A slam-dunk for Bachelder, with the federal appeals court granting her summary judgment. (Bachelder v. America West Airlines Inc., No. 99-17458, 9th Cir., 2001)
Advice: In any employee handout explaining, include a detailed explanation of the FMLA calculation method your company uses, including explicit examples of how the method applies in practical work-a-day terms. Also, if you decide to change to a different method for calculating leave, you must give employees at least 60 days notice, and the transition must enable them to retain the full benefit of 12 weeks under whichever method offers them the greatest benefit.
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