Vigilant Blog

News, trends and analysis in employment law, HR, safety & workers' comp

Jul 28, 2016

Employer failed to properly account for overtime in FMLA calculations

Leave LawsTermination & Resignation 

Because an employee was subject to discipline if he missed overtime shifts for which he volunteered, the extra shifts were actually mandatory for purposes of calculating regular work hours under the federal Family and Medical Leave Act (FMLA), ruled the Eighth Circuit U.S. Court of Appeals. The company in this case improperly ignored all of the overtime shifts when calculating FMLA entitlement, on the theory that employees signed up voluntarily for overtime. As a result, a production employee who frequently took intermittent FMLA leave to care for his asthmatic son used up his FMLA leave faster than he should have, and was fired.


FMLA Calculations for Employees with Variable Shifts: Using a Weekly Average

The court said the company should have followed the FMLA rules on calculating regular work hours for employees who have variable shifts: Use a weekly average of scheduled hours (including time missed) for the 12 months before the FMLA leave began. The court determined that the company’s miscalculations interfered with the employee’s FMLA leave rights. The court said the employee was entitled to get his job back and to receive lost wages of $75,681, an additional payment of $75,681 as liquidated damages, and $76,318 to cover his attorney’s fees (Hernandez v. Bridgestone Americas Tire Operations, LLC, 8th Cir, May 2016).

FMLA Compliance: FMLA Calculation Tips for Employers:

The FMLA rules require you as the employer to take into account any regularly scheduled hours and mandatory overtime when determining normal hours worked per week:

  • The higher the number of hours worked per week, the smaller the amount of FMLA leave used by employees who miss work only intermittently.
  • For example, 5 hours of FMLA leave translates into a full 20 percent of a week of leave for someone who normally works 25 hours per week, but only 10 percent of a week of leave for someone who normally works 50 hours per week.

As you can see, it’s critical to run your calculations correctly. For more guidance, see our Legal Guide, “FMLA: Calculation of a Workweek for Intermittent Leave” and contact your Vigilant employment law attorney for guidance.

This website presents general information in nontechnical language. This information is not legal advice. Before applying this information to a specific management decision, consult legal counsel.