Where FMLA and Overtime Intersect: Lucas Hernandez vs. Bridgestone
As a valued client, we like to keep you in the loop with pertinent FMLA cases that come across our desks. Many times you hear about these cases, they seem far-fetched and it’s easy to think the employer should have known better. This one, not so much. For most of you, overtime is an everyday part of life, and for that matter, so is FMLA. When the two of them start to mingle is where some lines begin to blur. Those blurred lines cost a certain tire factory almost a quarter million dollars in legal fees.
In the case, Hernandez v. Bridgestone, No. 15-2042, 8th Cir. 2016, the employee had an approved intermittent claim for his child’s asthma. In addition, he was volunteering for some overtime shifts when they were available. Once in a while, his child’s asthma would flare up during these overtime shifts causing him to have to miss work.
Things to note:
- Lucas Hernandez’ regular working schedule was 42 hours per week. This would allow 504 hours of FMLA leave entitlement.
- Hernandez had already progressed through Bridgestone Americas Tire Operations, LLC (BATO) absence policy’s disciplinary program with six absences being unexcused.
- On July 10th, Hernandez had exhausted his 504 hours of FMLA time.
- Under the federal regulations, voluntary 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.
- Hernandez then called in for two overtime shifts on July 11th and July 12th for FMLA qualifying reasons. However, due to being on a final warning and with FMLA exhausted, Hernandez was terminated.
In this case, what should have been considered is whether or not overtime that is volunteered for is considered mandatory. As an employee, Hernandez had the opportunity to volunteer for overtime shifts. However, when Hernandez signed up for an overtime shift and was ultimately selected to work that shift, he was then required to work and therefore subject to the company’s attendance policy if that shift was missed.
Bridgestone basically had two legal ways to approach this situation. View the overtime as voluntary and anyone who was not able to work that shift could not be disciplined for missing, since it was not required. Their second option was to make the overtime mandatory and subject to their attendance policies, if the shift was missed. In choosing option two, they would also have to represent the increased time in Hernandez’s now mandatory schedule in the FMLA leave entitlement allotted to Hernandez.
Although Hernandez had the option to choose whether or not to volunteer for an overtime shift, once Hernandez was chosen for that shift, it was then considered mandatory and subject to all attendance policies if the shift was missed. Since it was now considered mandatory, his FMLA bank of hours should have been increased to represent the time Hernandez was expected to work each week.
When Bridgestone considered Lucas Hernandez’ overtime to be mandatory, they violated his rights under FMLA when they failed to increase the match in FMLA leave entitlement to account for the increase in mandatory scheduled work hours.
In conclusion, it is very important to know what you require of your employees when it comes to a working schedule. For many of you, a 40 hour work week is the norm, but that is not always the case. It is important to be vigilant in tracking this time correctly, especially when an employee is facing termination.
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Hello, my employer calls OT mandatory but doesn’t treat it as such as employees may switch the shift or if they can’t make it for any reason there are no consequences like there would be for a regular shift. Does that mean those hours remain voluntary and do not change entitlement hours for FMLA reasons? Also, I’ve been told that employees on approved FMLA get a set 480 hours per year. Some employees though for a long consistent period of time have been asked to work 42.5 hours per week. Doesn’t that increase the 480 number? Thanks for your time.
Required overtime hours that are not worked by the employee because of an FMLA-qualifying reason may be counted as FMLA leave. However, voluntary overtime hours not worked due to an FMLA-qualifying reason may not be counted as FMLA leave. https://www.dol.gov/whd/regs/compliance/whdfs28i.pdf
If an employee normally works 40 hours a week their leave entitlement would be calculated at 480 hours (40 X 12). If an employee normally works 42.5 hours per week, their bank of time would be 510 hours (42.5 X 12). The employee who normally works 42.5 hours does have a larger bank of time however their weekly deduction for missing a week would be 42.5. Therefore, in either example, the employee only receives 12 weeks of time.