Employees have no unilateral right to pick shifts under FMLA

You no doubt know how hard it is to juggle shifts and schedules to accommodate employees who need FMLA time off. You rely on those employees to tell you as far in advance as possible that they need time off, and then rearrange schedules and workloads to be as accommodating as possible.

FMLA regulations require employees to let you know 30 days in advance that they need leave, or as soon as practicable if they have an unexpected or emergency need.

You can and should be a stickler for getting as much notice as possible. Don’t worry: FMLA doesn’t permit an employee to unilaterally demand you immediately assign him or her to a different schedule.

Recent case: Allan Costello, a technical operator at PSEG Power, worked a shift schedule that included a four-week rotation of four straight 12-hour days followed by several days off. The schedule gave him plenty of time off to care for his elderly father who had memory problems.

When Costello transferred to another plant, the company assigned him to a training program during the day shift, working 7 am to 3 pm, Monday through Friday. This created care problems, and he used 22 days of leave during the training period.

FMLA Compliance D

Trouble began when Costello informed his employers in writing that he was going back to the four-week rotation schedule, effective immediately. He wrote that the day shift was “causing problems regarding the care of my elderly father along with the loss of approximately $165 per week in built-in overtime.” When Costello didn’t show for his scheduled day shift, PSEG Power fired him.

Costello sued, alleging the company had violated the FMLA. But the court tossed out the case, reasoning that nothing in the letter indicated he wanted the shift change in order to take FMLA leave.

Instead, the court read the letter as a unilateral demand for a different shift. That’s not the way to claim FMLA leave. (Costello v. Public Service Enterprise Group, et al., No. 05-3344, DC NJ, 2007)