The FMLA Blog

For Purposes of Establishing 1,250 Work Hours Eligibiltiy Requirement, 12-Month Period Preceding Leave Commencement Not Tolled by FMLA Leave

Under Title I of the FMLA, to be eligible for FMLA leave an employee must have worked at least 1250 hours in the 12-month period preceding the commencement of FMLA leave.  29 USC 2611(2)(A)(ii). 

In Bailey v. Pregis Innovative Packaging, Inc., No. 09-3539 (7th Cir. April 2, 2010), it was uncontested that the employee did not meet that test for the two absences that formed the basis of her termination.  That is, measured from those absences, Bailey did not work the requisite 1250 hours in the preceding 12-month period.  She argued, however, that she was eligible because she was entitled to toll the 12-month period for the 56 days during that period in which she was on FMLA leave.  In so doing, Bailey argued that she was entitled to add the time she worked during the 56-day period prior to the start of the 12-month period at issue, thereby extending the 12-month period from the commencement of the leave at issue.  With the addition of the time she worked during this 56-day period Bailey argued that she met the 1250 work-hours requirement. 

In rejecting the argument, the Seventh Circuit opined:

There is no basis for such a contortion of the statute-- no hint in the statute or elsewhere that Congress envisaged and approved such a circumvention of the requirement that an applicant for FMLA have worked 1,250 hours in the preceding 12 months.

Under Title I of the FMLA, to be eligible for FMLA leave an employee must have worked at least 1250 hours in the 12-month period preceding the commencement of FMLA leave.  29 USC 2611(2)(A)(ii). 

In Bailey v. Pregis Innovative Packaging, Inc., No. 09-3539 (7th Cir. April 2, 2010), it was uncontested that the employee did not meet that test for the two absences that formed the basis of her termination.  That is, measured from those absences, Bailey did not work the requisite 1250 hours in the preceding 12-month period.  She argued, however, that she was eligible because she was entitled to toll the 12-month period for the 56 days during that period in which she was on FMLA leave.  In so doing, Bailey argued that she was entitled to add the time she worked during the 56-day period prior to the start of the 12-month period at issue, thereby extending the 12-month period from the commencement of the leave at issue.  With the addition of the time she worked during this 56-day period Bailey argued that she met the 1250 work-hours requirement. 

In rejecting the argument, the Seventh Circuit opined:

There is no basis for such a contortion of the statute-- no hint in the statute or elsewhere that Congress envisaged and approved such a circumvention of the requirement that an applicant for FMLA have worked 1,250 hours in the preceding 12 months. 

Comment:  Absent a USERRA situation, it is well-established that leave, whether paid or unpaid, does not count towards the 1250 work-hours eligibility requirement.  This is because the FMLA defines "hours worked" by cross reference to the Fair Labor Standards Act, which excludes leave.  Undoubtedly aware of this, Bailey tried a creative end-run by raising the tolling argument in an attempt to extend the 12-month period which forms the base for calculating the 1,250 hours worked.  A+ for effort.       

   

Absent Formal Challenge, Time Served on Wrongful Suspension Does Not Count Toward 1250-Hour Eligibility Requirement

In Pirant v. U.S. Postal Service, No. 07-1055, 2008 U.S. App. LEXIS 18912 (7th Cir. Sept. 4, 2008), the employee was 12 minutes shy of meeting the 1250-hour eligibility requirement for FMLA leave.  The employee argued that she would have met the 1250-hour requirement but for a two-hour wrongful suspension (she was directed by a supervisor to clock out early one day).  As support, she cited the decision of the Sixth Circuit in Ricco v. Potter, 377 F.3d 599 (6th Cir. 2004).  In that case, the Postal employee who was terminated, then grieved the termination and won reinstatement and a make-whole order from an arbitrator.  The Sixth Circuit held that the hours-of-service calculation for purposes of determining employee FMLA eligibility should include the "hours" the employee likely would have worked but for her unlawful termination.

The Seventh Circuit distinguished Ricco.  In Pirant, notwithstanding notice of her right to grieve the clock-out incident, she did not do so in a timely manner.  Her post-termination grievance of the clock-out incident was dismissed as untimely, a determination which she did not challenge.  The Seventh Circuit found that, by failing to pursue her formal challenge to the suspension, Pirant accepted that she was not entitled to compensation or FMLA credit for the lost 2 hours.  The court found that, standing alone, Pirant's unsubstantiated subjective belief that her two-hour suspension was wrongful was not enough to have those hours credited for purposes FMLA eligibility.  The Seventh Circuit affirmed the dismissal of her FMLA case because Pirant did not meet the 1250-hour eligibility requirement.

Comment:  The decision effectively precludes an employee from contesting the legitimacy of a suspension or termination that adversely effects their FMLA eligibility for the first time as part of their FMLA lawsuit, at least where the employee had other available avenues of redress that were either not used at all, or were not exhausted.  The decision leaves open whether a non-bargaining unit employee without an internal grievance process would be allowed to challenge wrongful suspensions or terminations that adversely affected eligibility for the first time as part of the employee's FMLA lawsuit.  Employers without an internal grievance process might cite Pirant while arguing that the employee could have filed a lawsuit but did not (or did not pursue it to a successful conclusion). 

Employers, of course, may have an internal grievance process outside of a collective bargaining agreement.  In that case, the employee who is shy of meeting the 1250-hour eligibility would also have to use the internal grievance process to challenge that decision.  In that case, Pirant should apply.  

The implication of Pirant is that an employee must both exhaust any internal grievance process regarding an alleged wrongful suspension or termination and must be successful in that forum by having the action reversed. 

The decision has received some notoriety for sustaining the dismissal of an FMLA claim because the employee missed the 1250-hour eligibility requirement by 12 minutes.  I guess folks are always fascinated by cases that fall just short of an arbitrarily drawn standard.            

1250 Work-Hours Eligibilty Requirement Strictly Enforced

Plaintiff Antoinette Pirant sued the Postal Service alleging that she was terminated in violation of Title I of the FMLA for missing work due to a covered chronic serious health condition.  The record established that Pirant had worked 1248.8 hours in the 12 month period preceding the unscheduled absence that gave rise to her termination. 

The court rejected Pirant's argument that the Postal Service failed to count two hours that she lost when she was wrongfully suspended by her supervisor and directed to clock out early one day.  The court found the record void of evidence that Pirant's suspension was wrongful. Critically, the court noted that Pirant's argument "is based entirely on her own belief, which however honestly held is insufficient to warrant crediting her with the two hours she would have likely worked had she not been suspended."

Pirant argued that she should have been credited for the the several off-the-clock minutes she spent each day before and after work changing into and out of her work cloths, which included a work shirt, apron, gloves and shoes.  The court disagreed.  The court found that, pursuant to the Portal-to-Portal Act, the Postal Service was not required to compensate employees for:

activities which are preliminary to or postliminary to [an employee's] principal activity or activities, which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities.

Ordinarily, changing and showering before and after work need not be compensated, unless it is an "integral and indispensable part of the principal activity of the employment."  If changing clothes before and after work touches on vital considerations of health, safety, or hygiene, an employer may be required to compensate an employee for that time, and the time would count as "hours worked" for purposes of the 1250-hours FMLA eligibility requirement.  For example, employees who work with toxic chemicals and were compelled to change and shower in facilities the employer was required to provide would satisfy that test.

Here, Plaintiff's job required her to handle the mail.  The court found no evidence that handling mail involved contact with hazardous substances, nor that it required utilization of any type of protective or safety gear.  At most, Pirant was required to use ordinary gloves and an apron.  "Donning and doffing these items would have taken mere seconds and would have required little to no physical or mental exertion."  As a result, the court concluded that Pirant was not entitled to compensation for these activities, and the Postal Service was not required to include time spent performing them in calculating her FMLA eligibility hours.

Finally, Pirant argued that the 1.2 hours shortfall should be disregarded as de minimis.  In rejecting the argument, the Court observed that that other courts have strictly applied all of the FMLA's numerical eligibility requirements.  The Court concluded that Pirant did not meet the eligibility requirements for FMLA leave due to her 1.2 hours shortfall in meeting the 1250 hours-of-service eligibility requirement.  The Court awarded summary judgment to the Postal Service dismissing the case.

Comment: The eligibility requirement that an employee has worked 1250 hours in the 12 months immediately preceding the commencement of leave is strictly enforced.  The case illustrates the type of arguments employees can try to make where the employer claims that the employee has not worked the requisite 1250 hours. 

An argument that might have been raised in Pirant (but apparently was not) arises where the leave at issue is intermittent or on a so-called reduced leave schedule.  That is, where an employee takes FMLA leave on more than one occasion during the 12-month FMLA leave year for the same underlying covered condition, such as a serious health condition.  In that situation, the determination of whether the employee met the 1250-work-hour requirement is made once on the occasion of the first intermittent absence.  If the employee meets the 1250-work hour requirement at that time, the employee has satisfied the eligibility requirement for all remaining related absences for the remainder of the 12-month FMLA leave year.