An FMLA Question

by Evil HR Lady on February 2, 2009

You have an exempt employee who is officially at 20 hours a week. Because she is exempt she is paid the same amount every week, regardless of how many hours she puts in. She frequently works more than 20 hours, but no time cards exist.

She has a baby and requests FMLA. On her official schedule of 20 hours a week, she has not worked the requisite number of hours to qualify under the statute. She claims with the additional hours she has put in, she more than qualifies. Her manager agrees. (FYI, I believe you need 1250 hours in a year for FMLA to qualify. Assume her company meets the other qualifications for FMLA and she has been there more than a year.)


{ 13 comments… read them below or add one }

Evil HR Lady February 2, 2009 at 7:39 pm

Personally, I think you have to grant FMLA. The statute has a minimum hours requirement, but (to the best of my knowledge) no exemption for exempt employees. I might see requiring proof, but since you have no time cards and the manager is backing her up, I don’t know how you would do that.

I think not allowing it would be setting yourself up for a lawsuit.

I’m interested in hearing people who disagree with my reasoning. And people who agree with me as well.

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Olivia February 2, 2009 at 8:13 pm

Sure, officially 1250 hours are required, but sounds like her manager is willing to back her up on that. To refuse (and why?) would be just begging the employee to sue, not only for FMLA, but possibly for wage/hour issues. If you really want to be such a stickler, make the employee hourly, and document the time. Otherwise, what is the point of refusing? I would imagine that at 20 hours per week there are limited benefits. One assumes not all of your employees are 20 hour a week jobs, so that you’re not worried about an onslaught of similar requests. Plus, refusing would at least alienate both the employee and the manager, even if it doesn’t become a legal challenge.

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jaded hr rep February 2, 2009 at 10:26 pm

So the question seems to be: are the hours based on actual hours worked (i.e., OT/extra hours included) or is it based on what’s scheduled? Language would suggest it’s actual hours worked, and while no time sheets exist, these days you can easily pull up emails, phone records, etc. that have time stamps attached to demonstrate one regularly works beyond scheduled hours.

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Ask a Manager February 3, 2009 at 12:21 am

I didn’t double check this, but my recollection is that the statute says “hours worked,” which I’d take to mean actual hours worked, rather than hours scheduled. So yes.

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Sadistic Manager February 3, 2009 at 4:06 am

Agreed. Give her the time. Not only is there a potential legal nightmare waiting to pop up, but if she’s exempt at 20 hours and has still managed to work the hours required for FMLA, I’d think she might be owed a little bit whether her employment conditions call for it or not.

I might not bother with FMLA, but I’d give her the time in any case.

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Anonymous February 3, 2009 at 2:29 pm

Let us assume that she satisfies the statutory minimum requirements (and it appears she’s very close to the 1250, if not over) – just give it to her. It sounds as if she’s going to be off regardless of qualifying for FMLA. Giving it to her accomplishes two things: it fosters employee good will and forces her to burn up part or all of her entitlement. This is good for everyone. Come on, is this really that complicated? Just require her to get the proper certification, track the leave, and move on.

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Sue February 3, 2009 at 3:04 pm

This is from the Deparment of Labor website: “Employees are eligible for leave if they have worked for their employer at least 12 months, at least 1,250 hours over the past 12 months, and work at a location where the company employs 50 or more employees within 75 miles. Whether an employee has worked the minimum 1,250 hours of service is determined according to FLSA principles for determining compensable hours or work.”

Therefore, you could probably decline FMLA if you wanted, because she is exempt and not compensated for 1250 or more hours in the 12 months. However, I would go ahead and count it since she actually did work that number of hours. (Just make sure whatever you do, you do the same thing with future requests.)

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Erin M Taylor February 3, 2009 at 5:21 pm

If the employer does not keep accurate records of the amount of time worked by the employee (including exmept employees) then the burden of proof is on the employer (not the employee) to prove that the employee has worked less than the 1250 hours. In this case there is an established work schedule of 20 hours per week, however both the employer and the employee have acknowledged that the employee sometimes works more than 20 hours per week. In the absence of records that would show the exact number of hours the employee worked, I’d have to say that the employee is eligible.

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Rookie FMLA Person February 3, 2009 at 6:24 pm

When you divide 1250/52 (weeks in a year), you come up with needing to average approximately 24 hours per week. Given the employee working above her regularly scheduled times, 1250 is not a hard work requirement to satisfy to meet FMLA requirements.

Given that this employee is exempt, the difference between her scheduled hours and hours needed for FMLA are so slight that I would give it to her since an established work schedule alone is not signficiant documentation to deny FMLA claims.

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Anonymous February 4, 2009 at 2:39 pm

Just make sure you treat other exempt part time employees with FMLA qualifying events in the same way.

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HR Godess February 4, 2009 at 4:23 pm

Having successfully fought a lengthy FMLA battle, I say offer it to her. If there is enough doubt to question it, just honor it. It’s not worth the headaches, the amount of money it cost to fight it and the amount of time.

(Just to be clear, it takes 5 years and over $500,000 to defend this in IL) Clearly there is no winner in a case like this.

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All Business HR February 11, 2009 at 10:49 pm

Absolutely you give it to her. It would be much more of a headache to fight the legal battle than give her the FMLA. If the employer has knowledge that she is working over her scheduled hours, which is evident by her manager backing her, then they can’t turn a blind eye and say that she “technically” doesn’t work 1,250 hours in 12 months. I don’t see the benefit in disallowing the FMLA to begin with. Unless of course, the employer is wanting to terminate the employee which wouldn’t be wise in her pregnant state anyway.

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jeromine April 1, 2009 at 7:18 am

Hi Nice Blog .If your time is less valuable, then it is probably less worthwhile to phone time card.

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