FMLA Eligibilty: Denying an Employee — For Being Just 3 Hours Short

 By Eric B. Meyer

Horseshoes, hand grenades and … FMLA eligibility?

And here I thought close only counted in the first two.

Who knew that close enough is good enough under the Family and Medical Leave Act (FMLA) when meeting the 1,250-hour eligibility requirement? Apparently, the Second Circuit Court of Appeals in this recent decision

Missed it by HOW much?

In Donnelly v. Greenburgh Central School District No. 7, the plaintiff, a former school teacher, claimed that the defendants unlawfully denied him tenure in retaliation for his having taken protected leave under the FMLA. Defendants countered that the plaintiff was not FMLA-eligible because he had worked only 1,247 hours in the preceding year, three hours fewer than the minimum required by law to be eligible for FMLA leave.

That’s close, but how did the defendants arrive at 1,247?

Well, they didn’t have actual time records for the plaintiff. Instead, they relied upon the collective bargaining agreement, which provides that the working day for covered employees shall not exceed 7 hours and 15 minutes. The defendants then did some quick math, multiplying 7 hours and 15 minutes by the number of days that the plaintiff appeared for work (172), and arrived at 1,247 hours worked.

The plaintiff countered that he actually worked more hours than the CBA contemplated. That is, at times he would show up early, work late, or work from home grading papers, and such.

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So, did he make the cut?

How would the court resolve this close call? It determined that the burden of proof fell upon the employer to demonstrate that the plaintiff had not actually worked more than 1,250 hours.

The court emphasized that this is not a particularly heavy burden, but it is specific. That is, a defendant must show that, in the plaintiff’s specific case, either the hours alleged could not have occurred or the hours alleged are not compensable as a matter of law according to Fair Labor Standards Act principles (i.e., that the work was not integral and indispensable to the job).

In this case, the CBA itself contemplated that teachers may, at times, work longer work days. Plus, the plaintiff produced a performance review, which acknowledged in writing that the plaintiff regularly arrived to work early. Defendant had no evidence to rebut the argument that that the extra work plaintiff performed was integral to his job. Therefore, the court deemed the plaintiff eligible for FMLA.

 3 important takeaways

So, what can employers take away from this?

  1. Make sure that you have a good way to track hours of non-exempt employees. Not only may FLSA overtime requirements apply (you know, paying OT for over 40 hrs worked in a workweek), but FMLA eligiblity may hinge on it too.
  2. Most employers do not track hours of exempt employees, like schoolteachers. So, you may have a tough time denying FMLA to an employee who is right around 1,250 hours. Then again, I’d like to think that most employer’s aren’t soulless monsters that nitpick FMLA eligiblity over a few hours.
  3. If you happen to be one of those ghouls, before making the final decision to deny FMLA, consider discussing your calculation of hours with the employee and give him/her a chance to present facts suggesting he/she meets the 1,250-hour requirement.
  4. Make sure to take a few secs and nominate my blog, The Employer Handbook, for the ABA Journal’s 2012 Blawg 100 Amici.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (, which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.