Off-work months during grievance don’t count toward FMLA eligibility — Business Management Daily: Free Reports on Human Resources, Employment Law, Office Management, Office Communication, Office Technology and Small Business Tax Business Management Daily
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Off-work months during grievance don’t count toward FMLA eligibility

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in Firing,FMLA Guidelines,Human Resources

Plant worker John Plumley was off the job for six months while he dealt with a grievance filed under the collective bargaining agreement. Ultimately, an arbitrator reinstated Plumley and awarded him six months back pay.

His first day back on the job, he left early to visit his ill father. When he missed the next day, too, he was fired for job abandonment. Plumley sued, claiming his firing violated the Family and Medical Leave Act (FMLA).

His employer argued that Plumley didn't have enough hours to qualify. The FMLA requires employees to work with the company for at least 12 months and clock at least 1,250 hours there in the 12 months leading up to the FMLA leave.

Plumley said he met that threshold by adding the 851 hours he worked to the hours for which he was compensated under the arbitrator's back-pay award.

A district court didn't go for his fuzzy math and an appeals court agreed. The court said that time an employee spends working out a grievance doesn't count toward the FMLA's eligibility requirements. Plumley didn't perform actual work during the grievance period, so the time didn't add up to hours of service. (Plumley v. Southern Container Inc., No. 01-2747, 1st Cir., 2002)

Advice: Go ahead and reject FMLA requests from employees who qualify only by counting hours spent at home waiting out a union grievance. The court was clear: "Hours of service" means actual time worked, not back-pay hours. That's why it's important to document carefully the amount of time workers spend on the job.

Take note: The result is different with retirement-plan accruals, where back-pay hours are counted as hours of service.

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