1,250 Eligibility

lobrien

I read somewhere that if the employer counts leave time as hours worked in determining whether an employee has worked overtime, it must also count those leave time towards an employee's total hours worked for the purpose of determining the 1,250 eligibility. Essentially, if our company policy is more expansive than the FMLA regs, then we should defer to our company policy.

Is this your typical practice?

Thank you!

JAthey

That is a very interesting question. I would like to know where you read that this was required so I could check out their rationale. In any event, this is how I would analyze the issue.

1 - Nothing in the FMLA or the regulations states that you have to count hours taken as paid leave toward the 1,250 hours worked requirement for eligibility.

2 - 29 C.F.R. § 825.120 states that whether an employee has worked the minimum of 1,250 hours is to be determined under the principles for “hours worked” established by the FLSA. The FLSA regulations (29 C.F.R. § 778.216) state that “payments made for occasional periods when no work is performed due to vacation, holiday, [or] illness … are not made as compensation for the employee’s hours worked.” Based on this premise, the regulation concludes that such payments are not included in the calculation of the employee’s regular rate and may not be credited toward any overtime compensation that may be due to the employee.

So it would appear that under the relevant FLSA regulation, employers are not required to count paid leave time as “hours worked.” Because it would not be treated as hours worked under the FLSA, nor would it be applied toward the 1,250 hours FMLA eligibility requirement.

3 - The question then becomes whether you are required to count paid leave time toward the 1,250 hours eligibility requirement **because you treat them as hours worked for the purpose of calculating overtime compensation** – even though that is not required by the FLSA. It appears that the regulation you need to be concerned about is 29 C.F.R. § 825.700 (Interaction with employer’s policies), which states in part that:

An employer must observe any employment benefit program or plan that provides greater family or medical leave rights to employees than the rights established by the FMLA.

The question is whether your policy of counting paid leave as hours worked under the FLSA is an “employment benefit program or plan that provides greater family or medical leave rights to employees than the rights established by the FMLA.” Although I would argue that it is not, I think it is a very tricky issue that would probably have to be resolved by a court. In addition, any attempt by me to answer it would probably cross the line into providing legal advice, which I really can’t do. I suggest you contact your lawyer about this issue. To me, it is not something that can be answered without some serious research and analysis.

4 - Perhaps the real question is why do you count paid leave as hours worked under the FLSA when it is clearly not required for you to do so?

Julie Athey
Author, FMLA Compliance: Practical Solutions for HR
Author, HR Q&A, Family and Medical Leave Act