New Case Clarifies Definition of “Workweek” for Week on, Week off Workers

On January 15, the 9th Circuit Court of Appeals issued an opinion in Scalia v. State of Alaska, offering much-needed clarity on employers’ obligations who offer rotational schedules under the Family Medical Leave Act.

The dispute in this case centered on workers who worked a rotating schedule that consisted of regularly scheduled hours in one or more weeks followed by weeks where they reported no hours of service. For example, some worked for a week and then had a scheduled week off; others worked for two weeks and had had two weeks off.

When these workers requested and took continuous FMLA leave, the employer’s practice was to count both the weeks worked and the regularly scheduled weeks off against the employee’s entitlement to 12 workweeks of leave. The United States Department of Labor challenged this practice, claiming that the employer could only count the weeks employees were “on” against an employee’s 12 week leave entitlement.

The Court, however, disagreed. Reviewing guidance going back to the 1960s, the Court determined that when Congress passed the FMLA, it used the term “workweek” with the intention that it would be interpreted the same way that the term is used in the Fair Labor Standards Act—namely, to refer to a “fixed, pre-established period of seven consecutive days in which the employer is operating,” whether or not the employee is scheduled to work in this time period. As such, it concluded that the employer, in this case, was entitled to count “off” weeks in the rotation against an employee’s 12 workweeks of leave under the FMLA.

This case provides additional flexibility to employers who utilize a rotational schedule in the 9th Circuit—which includes California and Arizona. If you have specific questions about how it affects your workplace, please contact Employers Council.