FMLA’s 1250- Hour Requirement and Pre- Leave Retaliation

In order to be able to take an unpaid leave under the Family and Medical Leave Act (FMLA), you have to have worked 1250 hours over the previous year. Seems simple enough, right?

Not so fast. Figuring in overtime, flex time, commute time, home office time, and everything else can make for a complicated formula. A recent 3rd Circuit decision brings up some very interesting questions about how to calculate that hourly mark.

The case, Erdman v. Nationwide Ins. Co., No. 07-3796 (3d Cir. Sept. 23, 2009), dealt with two important issues. The first was constructive notice that an employee had hit the 1250- hour mark; the second was a holding that a retaliatory firing under the FMLA can, as in this case, take place after the leave request but before the leave was actually taken.

First point: Nationwide claimed that Erdman did not qualify under the FMLA because some of her hours were worked from home. While the trial court granted summary judgment to Nationwide on this point, the 3rd overturned the lower court, saying that a jury should be able to look at Erdman’s record keeping to determine whether or not she clocked the appropriate hours.

Second Point: Erdman had a child with Down Syndrome, and had been used to taking vacation time each August to prepare the child for school. In this case, she decided to take FMLA time instead of vacation time. A Nationwide employee told her that wouldn’t be a problem. However, she was fired before the leave was approved.

Her claim of retaliation was dismissed at the trial level by summary judgment but, again, the appeals court overturned that part of the lower court’s decision, rejecting Nationwide’s argument that Erdman could not claim retaliation for taking FMLA leave because she never actually took the leave.

“We interpret the requirement that an employee ‘take’ FMLA leave to connote invocation of FMLA rights, not actual commencement of leave,” Judge Thomas Hardiman wrote for the unanimous 3rd Circuit panel.

If your employer is giving you problems about your FMLA rights, please contact us.