Employment-Second Circuit Rules That Hours Actually Worked Count Towards 1,250 Hour Threshold For FMLA Entitlement

In Donnelly v. Greenburgh Central School District No. 7, Docket No. 11-2448-cv (2nd Cir. 2012), one of the issues faced by the Second Circuit Court of Appeals (the “Court”) was whether the plaintiff, Edward Donnelly (“Donnelly”), had been eligible to take leave under the Family Medical Leave Act (the “FMLA”). The defendants argued that Donnelly was not so entitled, because, as calculated under his union’s Collective Bargaining Agreement (the “CBA”), he had worked only 1,247 hours — three fewer than the statutory minimum of 1250 — in the preceding year, The question then, for the Court, is how the hours should be counted in Donnelly’s case.

In analyzing the case, the Court noted that, to be eligible for FMLA leave, an employee must work at least 1,250 hours of service during the previous 12-month period. During the applicable period in this case, Donnelly, a teacher, had worked 172 of the expected 189 days of the school year. The CBA set forth a formula for calculating the number of hours that would be credited to a teacher. Under this formula, the teacher is generally credited with 7.25 hours per day, giving Donnelly 1247 hours. However, Donnelly asserted that he and most teachers regularly work in excess of a total of one hour before and after class, and that he typically worked a total of 1.5 hours before and after class every day. That extra 1.5 hours per day, if taken in account, would be in addition to the 7.25 hours credited under the CBA, and would put Donnelly well over the 1250 hour threshold for the applicable period.

The Court further noted that, as to the number of Donnelly’s hours for determining FMLA leave entitled, the DOL regulations state that, in the event an employer does not maintain an accurate record of hours worked by an employee, the employer has the burden of showing that the employee has not worked the requisite hours. In fact, the regulations specifically state that an employer must be able to clearly demonstrate that full-time teachers of an elementary or secondary school system-like Donnelly- did not work 1,250 hours during the previous 12 months in order to claim that the teachers are not eligible for FMLA leave. (29 C.F.R. § 825.110(c)(3)). The DOL regulations say further that the determining factor is the number of hours an employee has worked for the employer within the meaning of the FLSA. The determination is not limited by methods of recordkeeping, or by compensation agreements that do not accurately reflect all of the hours an employee has worked for or been in service to the employer. Any accurate accounting of actual hours worked under FLSA’s principles may be used (29 C.F.R. § 825.110(c)(1)).

The Court found that the defendants did not keep records of the hours that Donnelly worked, so they have the burden of proving his ineligibility for FMLA leave by reason of failing to work the 1250 hours. Further, based on the DOL regulations, the CBA and its formula do not control in counting the hours. The actual hours worked must be determined. The Court remanded the case back to the district court to make this determination.