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More FMLA Guidance Regarding Eligibility Following Prolonged Leave

Our first article this week has an interesting look at FMLA
eligibility for an employee who likely didn’t work the minimum number of hours
in the prior year.  In particular, the
question is tricky because the employee is a managerial exempt employee, and
the FMLA states that employers have an affirmative burden to prove that such
employees are not eligible for leave.
The FMLA requires an employee to have worked 1,250 hours during the
prior year in order to be eligible, and here, the employee had taken 12 weeks
of FMLA leave, six weeks of unpaid leave, and had missed another four weeks due
to medical issues.

While the article notes that a simple “back of the napkin”
calculation shows that it is unlikely the employee worked the requisite number
of hours, eligibility under the FMLA is not so simple in the absence of
detailed hours worked records
.  Employers
need to be creative in showing that given an employee’s leave and typical hours
worked, it would be highly unlikely or impossible, even given duties performed
outside regular work hours, that the employee would have been able to work the
1,250 hours required.

In order for an employer to show that an employee is
ineligible, the evidence must clearly demonstrate a failure to work the
required number of hours.  Factors can
include the number of hours usually worked per week, any work performed outside
the office, review of work at home via email, telephone calls outside work
hours, and the presence of a collective bargaining agreement.  On the flip side, employees trying to get
FMLA leave approval can draw on these factors to fight a clear showing of
ineligibility, leaning on the law’s presumption of eligibility in the absence
of competing evidence.  Employers can
re-test eligibility every time an employee requests leave for a new FMLA
condition, or when the request occurs during a new year.  Of course, the easy way to get around these
hurdles for exempt employees is simply to keep accurate records of work
performed so that evidence is available when needed.

Second, an interesting Q&A about EEOC
investigations has some useful reminders for employees
.  First, it is worth remembering that the focus
of EEOC investigations is on whether discriminatory action occurred, not
whether the employee was a good or bad employee.  Employees seeking to use an EEOC investigation
to disclose potential facts for a federal lawsuit can make use of FOIA requests
to the EEOC to obtain factual information the employer provided to the EEOC in
responding to the charge investigation.
Employers may not file position statements in response to a charge
allegation where they are worried that the employee is simply waiting to file
suit; given that, it may make sense for employees claiming discrimination to
forgo hiring an attorney until after the EEOC finishes its investigation as
companies that know a suit is likely may provide only minimal information to
the EEOC in the hope of limiting the spread of information until discovery.