Home -> Law Blog Directory -> Labor & Employment Law Blogs -> New York Public Personnel Law
(866) 635-2689 for Personal Injury or (866) 635-9402 for Criminal Defense
Find a Local Lawyer
Divorce (866) 635-6190
Personal Injury (866) 635-2689
Criminal Defense (866) 635-9402
Labor & Employment Law
: New York Public Personnel LawThe 12-month -1,250 work hours eligibility requirement for FMLA leave not tolled while employee is on FMLA leave during that 12-month period
Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/
Copyright © 2010. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.
Under Title I of the FMLA, to be eligible for FMLA leave an employee must have worked at least 1250 hours in the 12-month period preceding the commencement of FMLA leave. 29 USC 2611(2)(A)(ii).
In Bailey v. Pregis Innovative Packaging, Inc., No. 09-3539 (7th Cir. April 2, 2010), it was uncontested that the employee did not meet that test for the two absences that formed the basis of her termination. That is, measured from those absences, Bailey did not work the requisite 1250 hours in the preceding 12-month period. She argued, however, that she was eligible because she was entitled to toll the 12-month period for the 56 days during that period in which she was on FMLA leave.
In so doing, Bailey argued that she was entitled to add the time she worked during the 56-day period prior to the start of the 12-month period at issue, thereby extending the 12-month period from the commencement of the leave at issue. With the addition of the time she worked during this 56-day period Bailey argued that she met the 1250 work-hours requirement.
In rejecting the argument, the Seventh Circuit opined:
There is no basis for such a contortion of the statute-- no hint in the statute or elsewhere that Congress envisaged and approved such a circumvention of the requirement that an applicant for FMLA have worked 1,250 hours in the preceding 12 months.
Under Title I of the FMLA, to be eligible for FMLA leave an employee must have worked at least 1250 hours in the 12-month period preceding the commencement of FMLA leave. 29 USC 2611(2)(A)(ii).
Mr. Bosland Comments: Absent a USERRA situation, it is well established that leave, whether paid or unpaid, does not count towards the 1250 work-hours eligibility requirement. This is because the FMLA defines "hours worked" by cross-reference to the Fair Labor Standards Act, which excludes leave. Undoubtedly aware of this, Bailey tried a creative end-run by raising the tolling argument in an attempt to extend the 12-month period that forms the base for calculating the 1,250 hours worked. A+ for effort.
Full post as published by New York Public Personnel Law on April 08, 2010 (boomark / email).
Language Requirements for Citizenship
Naturalization without an English language test
Employee Lawsuits (An Introduction and Topic Overview)
How employers can cope with the siege of employee lawsuits
Employee Lawsuits: Negligent Hiring and Retention
Employers must check references, criminal records, other background material.
Work Visas
Types of work permits
Temporary Work Visas
Differences Between H-1B, J-1, E-1, E-2, L-1, and R-1 Work Visas
How to Become a US Citizen
Citizenship Eligibility, Application, Exmaination
Folding Soccer Goals Recalled
20-Month Old Child Found Strangled to Death
Richard Mellon Scaife
Billionaire divorce lawsuit ends in a $725,000 a month settlement.
Unsafe Work Site
Employee awarded $2.5 million personal injury settlement after suffering burns to his lower body.
Arkansas Nucor Plant Guilty of a Racially Hostile Work Environment
Nucor Guilty Of Racially Hostile Work Environment Must Pay $1.2 Million Settlement
Railroad Workers
concerning the growing number of work-related injuries in the railroad industry.
Lexmark to Pay $8.3M in Employee Vacation Class Action
Lexmark to Pay $8.3M in Employee Vacation Class Action

7th holds employee was 1.2 hours shy of FMLA eligibility
Estoppel did not bar employer from raising FMLA non-eligibility defense
FMLA Insight Podcast: Holiday Edition
Family Medical Leave Act Regulations Become Effective







