In order to claim entitlement to Family and Medical Leave, an employee must have worked for the employer for 12 months and for 1250 hours in the previous 12 months.  Occasionally employers are able to defeat FMLA claims by demonstrating that the employee did not meet these threshold requirements.  Last week, the Third Circuit Court of Appeals allowed a FMLA claim to move forward based on informal hours worked by an employee at home.

In Erdman v. Nationwide Ins. Co., the plaintiff worked a part-time schedule of less than 1250 hours per year.  She sued Nationwide alleging that it had wrongfully denied her request for FMLA leave to care for her daughter.  The plaintiff appealed the district court's dismissal of her FMLA claim on eligibility grounds, alleging that she had informally worked additional hours from home, thus taking her over the 1250 hour threshold.

Nationwide took the position that it had specifically informed the plaintiff that she was not to work overtime hours without advance approval.  The plaintiff contended that the additional hours were not overtime, but rather consisted of an informal compensatory time system that allowed her to accumulate additional vacation time, and was known to her supervisor.

The Third Circuit conclude that there was sufficient dispute over Nationwide's knowledge and acquiescence to this comp time system to allow the claim to go to trial.  Nationwide's prohibition on homework only related to accumulation of overtime, and not other hours short of the 40 hour per week limit.
Under FMLA and wage payment laws, employers need to carefully advise employees regarding working outside of the office.  If the employer is even indirectly aware of such additional time, it will be liable for the extra wages and impacts of this time, even where a policy or procedure may restrict such work.  Absent clear guidance and enforcement of such policies, employers will be considered to have "suffered" such additional working time.