The Second Circuit Court of Appeals recently held that a high school teacher denied tenure after a medical leave due to surgery could proceed with his retaliation claim based on post-leave evaluations admonishing his excessive absences. Donnelly v. Greenburgh Cent. Sch. Dist. No. 7 (2nd Cir. 2012). The Second Circuit reinstated Edward Donnelly’s claim based on its finding that the school district erroneously determined that he was ineligible for leave under the Family and Medical Leave Act.
An employee is not eligible for FMLA leave unless the employee is employed for 12 months, works 1,250 hours in the 12-month period immediately preceding the leave, and works at a work site with at least 50 employees within a 75-mile radius. “Hours worked,” as defined by the Fair Labor Standards Act, are used to determine whether an employee has met the 1,250-hour requirement.
The district used Donnelly’s union contract, which identified a standard 7.25 hour day for 172 days per school year, to determine that Donnelly had only worked 1,247 hours in the 12 months preceding the leave and was, therefore, ineligible. The district relied on the contracted hours because Donnelly was exempt from overtime, and no specific record of hours worked existed. Donnelly provided compelling evidence, however, that his actual number of hours worked were much greater.
Donnelly said that he worked regularly beyond the school day meeting with individual students, preparing lesson plans, or doing other work-related tasks. In fact, his long hours were positively noted in an evaluation. This was sufficient for the court to find that he had met the 1,250-hour requirement. The court noted that when an accurate record of hours worked is not available, the burden is on the employer to prove the employee did not work 1,250 hours rather than on the employee to prove that he did.
The court held that the union contract was not the final word on hours worked because Labor Department regulations recognize that union contracts or other compensation agreements may not “accurately reflect all of the hours an employee has worked for or been in service to the employer.” In this case, “[T]he number of hours worked is thus a factual question, on which the CBA—while certainly evidence to be considered—is not determinative.”
Employers should very carefully calculate hours worked before determining FMLA eligibility. Reliance on “regularly scheduled” hours, estimates, or assumptions may not be sufficient to prove that an employee is not eligible for FMLA.