Employment-First Circuit Rules That Backpay Awarded For Retaliation Under the FMLA Can Include Overtime

In Pagan-Colon v. Walgreens of San Patricio, Inc., Nos. 11-1089/11-1091 (1st Cir. 2012), the First Circuit Court of Appeals (the “Court”) faced, among other things, a claim that the plaintiff had been terminated in retaliation for conduct protected by the Family and Medical Leave Act (the “FMLA”). One issue arising out of that claim is whether a backpay award under the FMLA may include overtime pay.

The district court had determined that the plaintiff’s lost wages-due to retaliation which violated the FMLA-included $20,637 in overtime pay. The district court determined the amount of the overtime pay owed the plaintiff by estimating that he would have worked 6.5 hours of overtime per week over the 125-week period between his employment termination and the judgment. It obtained the 6.5 hours per week figure by looking at the year-to-date average of the plaintiff’s weekly hours during the months prior to his termination.

The Court ruled that overtime pay may be included in backpay damages for retaliation under the FMLA. Further, the Court ruled that the district court did not commit a clear error in the manner in which it calculated the amount of the overtime pay for these purposes. Consequently, the Court upheld the district court’s calculation.