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What does it all mean and who does it mean it for? An Eligible Employee under the FMLA, Part 2.

Last time we talked about the 12 month rule for determining an eligible employee.  This time let’s talk about the 1,250 hour rule.  You remember, to be eligible you have to have worked for the employer for 12 months and you have to have worked at least 1,250 hours in the last 12 months.  (And if you are reading ahead don’t forget the 50 employee test).

Ok, so let’s start with what we count:

(c)(1) . . .  whether an employee has worked the minimum 1,250 hours of service is determined according to the principles established under the Fair Labor Standards Act (FLSA) for determining compensable hours of work. See 29 CFR part 785. 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 CFR §825.110(c)(1).

So that is easy enough, an hour worked for FLSA purposes is an hour worked for FMLA purposes.  And an hour worked for FLSA purposes is?  I’m not going to go through it all here.  But you can read about it here.  Another thing to keep in mind is that an employee who is off doing military duty and who is covered by USERRA gets credit for hours they would have worked while they were on USERRA covered leave.  29 CFR §825.110(c)(2).

And what about if we don’t have records of how many hours the employee worked?  Well, if the employee is non-exempt under the FLSA, you are required to keep time records, so shame on you if you don’t.  But what about exempt employees?  We don’t have to keep time records for exempt employees, what do we do with them?

(3) In the event an employer does not maintain an accurate record of hours worked by an employee, including for employees who are exempt from FLSA’s requirement that a record be kept of their hours worked (e.g., bona fide executive, administrative, and professional employees as defined in FLSA Regulations, 29 CFR part 541), the employer has the burden of showing that the employee has not worked the requisite hours. An employer must be able to clearly demonstrate, for example, that full-time teachers (see §825.102 for definition) of an elementary or secondary school system, or institution of higher education, or other educational establishment or institution (who often work outside the classroom or at their homes) did not work 1,250 hours during the previous 12 months in order to claim that the teachers are not eligible for FMLA leave. See §825.801(d) for special rules applicable to airline flight crew employees.

29 CFR §825.110(c)(3).

That’s right, in the case of an exempt employee the assumption is that if they have worked the last year for you then they have worked 1,250 hours in that year (or ¾ of a year even, because remember, a work year is 2,080 hours) and if you want to contest that, the burden falls on you to show that they have not worked that time.

And to wrap these last 2 posts up:

(d) The determination of whether an employee meets the hours of service requirement and has been employed by the employer for a total of at least 12 months must be made as of the date the FMLA leave is to start. An employee may be on non-FMLA leave at the time he or she meets the 12-month eligibility requirement, and in that event, any portion of the leave taken for an FMLA-qualifying reason after the employee meets the eligibility requirement would be FMLA leave. See §825.300(b) for rules governing the content of the eligibility notice given to employees.

29 CFR §825.110(c)(3).

So if an employee has worked the 12 months and 1,250 hours when the leave starts, they get all the leave even if they fall below the 1,250 hours after the leave has started.  And conversely, if an employee is not eligible when the leave starts but becomes eligible during the leave, then once they become eligible the leave is FMLA covered.  How can this happen?  Well, let’s say you have a pregnant employee who is not yet eligible for FMLA leave because she has not worked for you for 12 months, but you have a maternity leave policy, so she is out on leave.  While she is out on leave she crosses over the 12 month threshold.  Now, she is FMLA eligible and entitled to FMLA leave.  Your eligibility notice becomes very important if this happens.