On May 13, 2016, in Hernandez v. Bridgestone Americas Tire Operations, the 8th Circuit Court of Appeals held that mandatory overtime hours may be deducted from an employee’s FMLA leave entitlement, but similarly, mandatory overtime hours must be included when calculating total FMLA leave entitlement. In other words, an employer can’t have its cake and eat it too.
In this case, Bridgestone Americas Tire Operation (BATO) had an attendance program for hourly employees pursuant to a collective bargaining agreement (CBA). the CBA also set forth overtime procedures. An overtime sign-up sheet is posted; if an employee is willing to work overtime hours, s/he signs up. Once the employee signs up and is selected to work overtime, the overtime hours become “mandatory” (instead of voluntary), and the employee may be disciplined under the attendance program for missing the shift. If an employee misses an overtime shift for an FMLA-qualifying reason, the overtime is deducted from the employee’s FMLA entitlement. In this case, the plaintiff was normally scheduled for 42 hours per week. Accordingly, BATO credited him with 504 hours of FMLA (42 hours a week x 12 weeks). When he ran out of this FMLA entitlement and missed work, he was terminated under the attendance program for missing time, even though his reason for missing work was for FMLA-qualifying absences.
So, what went wrong? Unfortunately for BATO, while they deducted missed overtime shifts from the employee’s FMLA entitlement, they failed to include overtime hours into his FMLA entitlement. In other words, Hernandez may have worked 54 hours all 12 weeks due to picking up an extra shift each week, which would have resulted in 648 hours of available FMLA. Since they only calculated his FMLA entitlement based on a 42 hour workweek, he was not given any credit for overtime hours worked in his normal workweek. Accordingly, the Court held that BATO interfered with Hernandez’s FMLA rights by not crediting him for his overtime work and thus inappropriately calculating his FMLA leave (resulting in his termination for missing work (unexcused) under its attendance program).
- Make it clear to employees at what point voluntary overtime becomes “mandatory”.
- Be sure to include overtime hours in calculating an employee’s “hours worked” for purposes of FMLA eligibility (1,250 hours worked during 12 months prior to start of FMLA leave).
- Ensure that mandatory overtime hours are treated as hours worked for both entitlement and leave taken.
The FMLA provides that entitlement is based on a workweek – not number of days or hours worked (thus, if they miss a week of work and a holiday falls in that week, they are charged for that holiday). However, if they normally work more than 40 hours, the entitlement is not capped at 480 hours – the focus is the employee’s normal workweek (hours/days per week). FMLA leave is easy to calculate when the employee takes whole-week increments, but it gets much more messy when they need intermittent leave. If this is an issue, you may want to start at 29 C.F.R. 825.205(c) (this is the statute that was disputed in this case) and perhaps also check out the DOL Wage and Hour Division’s Opinion Letter FMLA2002-1.