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Additional Paid but Unworked Hours Do Not Count Toward FMLA Eligibility Threshold

    Client Alerts
  • May 11, 2007


In order to be eligible for job-protected leave under the Family and Medical Leave Act, an employee must have worked for the employer for one year, and must have worked at least 1250 hours in the 12 months preceding the date of leave.  In Mutchler v. Dunlap Memorial Hospital, the Sixth Circuit Court of Appeals last week considered whether hours paid to the employee, but not worked, count toward the eligibility threshold.  The suit was filed by a nurse who worked a 48-hour schedule each two weeks.  Under her pay plan, she was paid for 60 hours if she successfully completed the 48-hour requirement.  When she applied for FMLA leave, the hospital calculated her eligibility based on hours actually worked.  Because she had not worked 1250 hours in the last year, the leave was denied.  She sued, claiming that the hours threshold should have been based on her pay.


The Sixth Circuit disagreed, affirming dismissal of the claim on summary judgment.  The court defined “hours of service” under the FMLA using the same analysis used for purposes of determining hours worked under the Fair Labor Standards Act.  Under the FLSA, paid time off does not count toward the 40-hour overtime threshold.  Similarly, hours of service under the FMLA is limited to time actually spent working.  In addition, the employer’s payment of the additional hours did not equitably stop it from later discounting those hours for FMLA purposes.  Employers facing requests for FMLA leave should always first determine whether the employee has met these basic eligibility requirements.