New FMLA Ruling
HRinGA
412 Posts
This came out of the First Circuit Court regarding FMLA.
Employers must now be aware of an employee’s previous service with the company upon their re-hire, and they must compute a re-hired employee’s FMLA eligibility to include previous time with the company.
Case No. 06-1633. Kenneth Rucker v Lee Holding D/B/A Lee Auto Malls.
One more thing to make our lives that much more complicated.
Employers must now be aware of an employee’s previous service with the company upon their re-hire, and they must compute a re-hired employee’s FMLA eligibility to include previous time with the company.
Case No. 06-1633. Kenneth Rucker v Lee Holding D/B/A Lee Auto Malls.
One more thing to make our lives that much more complicated.
Comments
Anne in Ohio
What I interpreted was that the word "previous" did not necessarily mean "immediately preceding" the illness. "Previous" means anytime prior to his illness that he was actively employed. So if Susie worked for you 1/1/99-12/1/99, left and came back 1/1/07, she would be eligible because she already satisfied the requirement the first time she worked for you.
Ridiculous, I know.
Anne in Ohio
Everytime I read something about FMLA where an employer is getting sued the decision of the court is completely different than what is stated in the FMLA regs. It seems they make up the rules as they go along.
I have a very strong dislike for FMLA. While the intent is good, the administration and enforcement is horrible for all HR professionals who have to deal with this awful situation.
Anne in Ohio
If you are not in one of those states I wouldn't jump off the deep end on this one. Even if you are (which we are) I wouldn't get too excited. I can't imagine that this will hold up or even apply to most situations.
You said you received it from corporate, right? Sounds like something that they sent out to say, "See we are relevant and important."
But, thanks for the info anyway. It's good to know what our good democratic states are up to.
One of our companies is a Temp agency....they re-hire people all the time, most of whom never work for a full 12 months at a time. However, many of our temps work 1250 hours or more in a given year. Does this decision mean that we would be forced to calculate all previous service time towards satisfying the one year service rule under FMLA? As much as I would like to beleive you when you say this decision will not hold up or apply to most situations, Murphy's law will surely prevail. In our situation, I fear it may have very serious implications if this standard is adopted by other district courts. The thought of having to calculate someone's previous service in total who many have worked for us on 14 different occasions is sickening.
As to this being adopted by other circuits, remember that this is one of the most liberal circuits in the country other than CA's circuit. Aren't they the 9th? Can't remebmer off the top of my head.
employer need not be consecutive months." (29 CFR 825.100) I'm confused as to why this is news to anyone.
As for employers outside the jurisdiction of the First Circuit, I defnitely would take note - in interpreting federal statutes, courts must give deference to reasonable interpretations of the statutes' enforcing agencies, and I don't see how the DOL's interpretation is unreasonable, given that the FMLA statute is ambiguous at best. If this case does go to the Supreme Court, I would expect the Supreme Court to affirm this decision, in which case there would be no question as to whether it applies to all employers.
Okay, time for me to start my weekend! :-)
"The 12 months an employee must have been employed by the employer need not be consecutive months. If an employee is maintained on the payroll for any part of a week, including any periods of paid or unpaid leave (sick, vacation) during which other benefits or compensation are provided by the employer (e.g., workers' compensation, group health plan benefits, etc.), the week counts as a week of employment. For purposes of determining whether intermittent/occasional/casual employment qualifies as ``at least 12 months,'' 52 weeks is
deemed to be equal to 12 months."
Personally I don't read the latter sentence(s) in the statute as modifying the first (and apparently the DOL doesn't either). If an employee is maintained on the payroll, or if the employee is on leave, that employee is still employed by the employer. So the situation described in those later sentences doesn't even apply to the first - does anyone really ever claim that if an employee goes out on vacation or takes sick days in the course of a year, then the person wasn't continuously employed for that year? So the second sentence just provides extra information with respect to calculating the twelve months. In fact, that very last sentence you posted ("For purposes of determining whether intermittent/occasional/casual employment qualifies as 'at least 12 months,' 52 weeks is
deemed to be equal to 12 months.") further supports the interpretation that the First Circuit adopted. This sentence demonstrates that the FMLA itself recognizes that an employee who is employed on an intermittent, occasional, or casual basis can be entitled to FMLA leave. Employees who work for an employer for 12 months straight typically don't fall into the intermittent, occasional, or casual worker category.
Let's just let everyone be eligible for FMLA then we won't have these issues.
Tammy Binford
Editor, M. Lee Smith Publishers
"If you rehire an employee, even after an extended break in employment, you should count the employee's period of prior employment toward the FMLA eligibility requirements. That means that returning employees may be eligible for leave as soon as they've worked 1,250 hours for you in their new period of employment."
So it looks like they at least have to accumulate the 1,250 hrs. Which takes 6-7 months based on a 40hr work week. I would hope that standard remains in place.