Take care when calculating overtime & FMLA

Do you offer voluntary overtime to employees, but make attendance mandatory if employees sign up? If so, watch how you calculate FMLA leave. You have to include the overtime in the calculation of available FMLA hours, or you can’t subtract FMLA hours for an absence.

Recent case: Lucas worked as an hourly production worker at a tire factory. The employer had no-fault attendance program that required termination once an employee hit a certain number of absences during a work year.

The company provided opportunities for overtime for employees who wanted it. Overtime was voluntary and based on seniority. However, once workers were on the overtime schedule, missing that shift would count against the attendance policy.

Lucas worked a regular 40-hour schedule all year, but also requested overtime.

Lucas, whose child has asthma, had been approved for intermittent FMLA leave as needed. Sometimes, he used accumulated FMLA leave during overtime shifts. While he still had hours in the bank, he wasn’t penalized. But his FMLA hours were calculated on the basis of his regular workweek and he did not accrue more hours for the overtime worked.

When Lucas called off an overtime shift after he was out of FMLA hours, he was fired because the absence put him over the attendance threshold.

Lucas sued. He alleged that his employer hadn’t properly credited him for FMLA hours by excluding the overtime hours.

The court agreed. It said that if an employer wants to subtract FMLA leave for overtime hours, then it must also count those hours towards FMLA leave accumulation. In this case, it didn’t. Instead, the employer subtracted the hours, running them out. That’s an FMLA violation that cost the employer $150,000 in damages and another $75,000 in attorneys’ fees. (Hernandez v. Bridgestone, No. 15-2042, 8th Cir., 2016)