Eighth Circuit: Guidance on Overtime Hours When Calculating Intermittent FMLA Leave Benefits

Specifically, the court stated that although Hernandez volunteered for overtime shifts, the overtime shifts became mandatory based on BATO’s policies and procedures.  There, if overtime shifts were missed due to unexcused absence, employees would be subject to discipline and the shift would be deducted from the employee’s FMLA entitlement.  Consistent with its policy, BATO deducted Hernandez’s unexcused, mandatory overtime shifts from his FMLA entitlement, which the court stated did not interfere with federal regulation of voluntary overtime.  Under 29 C.F.R. § 825.205(c), “[v]oluntary overtime hours that an employee does not work due to an FMLA-qualifying reason may not be counted against the employee’s FMLA leave entitlement.”

Further, the court stated that designation of voluntary or mandatory overtime must be consistently applied to FMLA leave both for determining deductions from the leave entitlement and for calculating the total allotment.  Although it deducted mandatory overtime from Hernandez’s FMLA entitlement, BATO did not include the mandatory overtime when calculating his total FMLA leave allotment. Under FMLA, “an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period.” (29 U.S.C. § 2601(b).)  As a result, the court stated that “BATO interfered with Hernandez’s rights under the FMLA by improperly calculating his FMLA-leave entitlement.”  Because the FMLA entitlement calculation should have included mandatory overtime, which is calculated subject to the formula set forth in Section 825.205(b)(3), Hernandez did not receive the “FMLA benefits to which he was entitled.”

Action Items

1. Carefully review your organization’s overtime policies when calculating intermittent leave allotments.
2. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

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