Deducting Overtime from Leave Allotment Violated FMLA

Overtime hours should have been included in calculating FMLA leave allotment

By Jeffrey Rhodes September 2, 2016

An employer interfered with an employee's Family and Medical Leave Act (FMLA) rights by deducting unworked overtime hours from an employee's FMLA leave allotment without including overtime hours in calculating that allotment, the 8th U.S. Circuit Court of Appeals has ruled.

Bridgestone Americas Tire Operations LLC designs, manufactures and sells tires in a number of North American facilities. Bridgestone hired Lucas Hernandez in 2003 as an hourly production worker, and Hernandez became a tire builder. 

Bridgestone has an attendance program for all hourly employees that was negotiated with the employees' union and incorporated into the collective bargaining agreement (CBA). An employee's failure to report for a shift—regular or overtime—is considered an "incident of absence." The employee must notify plant security, and the guard then records the employee's reported reason for the absence on a call-off log. 

Bridgestone uses progressive discipline in addressing employee absenteeism. After five absences in a nine-month period, the employee must attend counseling. Another absence in nine months results in a written warning, then another results in a written reprimand, then a final written warning. If another absence occurs within nine months, the employee is terminated. At each step, the employee and the union may provide documents or information to explain an absence. 

Each October, Bridgestone sets production employees' work schedules and maintains them without change from Nov. 1 through Oct. 31 of the following year. Due to the continuous nature of manufacturing operations, overtime shifts are often necessary. The CBA controls the selection of employees for overtime, and a sign-up sheet is posted in the department when overtime is needed. 

Tire builders record their interest in and availability for shifts on the overtime sign-up sheet. Bridgestone selects employees from the list based on seniority and the number of overtime hours that the employee has worked that year. An employee who fails to report for an overtime shift is subject to discipline under the attendance program, unless the absence is excused.

In July 2010, Hernandez requested and was approved for intermittent FMLA leave to care for his son, who has asthma. In November 2011, he requested additional intermittent FMLA leave. HR calculated Hernandez's maximum leave allotment based on his fixed work schedule of 42-hour workweeks, which resulted in an allotment of 504 hours over 12 weeks. This did not take into account additional overtime that Hernandez was scheduled to perform.

Between Oct. 31, 2011, and July 15, 2012, Hernandez missed work 54 times. Six of those absences were overtime shifts. While 42 of the missed days were excused under the attendance program as FMLA leave or accident and sickness leave, six were unexcused. Hernandez exhausted his 504 hours of FMLA leave on July 10, 2012. Hernandez's continued unexcused absences thereafter resulted in progressive discipline, despite notes from his doctor showing that the leave related to his son's illness. Bridgestone terminated Hernandez in August 2012. 

In May 2013, Hernandez sued Bridgestone, claiming FMLA discrimination, retaliation, harassment and interference. Bridgestone filed a motion for summary judgment, and the district court dismissed the discrimination, retaliation and harassment claims but ruled in favor of Hernandez on the interference claim. The district court found that Bridgestone should not have deducted overtime shifts from Hernandez's FMLA leave allotment because they were voluntary under the FMLA regulations. A jury awarded Hernandez $75,681 in damages on his interference claim, and the district court awarded Hernandez $76,318 in attorney fees and costs.

Bridgestone appealed the decision to the 8th Circuit, which affirmed the district court ruling while disagreeing with the district court's analysis. Because Hernandez signed up for the overtime shifts and had to perform them for the following year under Bridgestone's policy, the shifts were no longer voluntary but mandatory. Thus, each 12-hour overtime shift missed could be deducted from Hernandez's leave allotment.

Nevertheless, the 8th Circuit found that Bridgestone erred in not increasing Hernandez's leave allotment to account for the greater amount of hours Hernandez typically worked in a 12-week period due to his required overtime. Because Bridgestone failed to do so, as required by the FMLA regulations, it interfered with Hernandez's FMLA rights.

Hernandez v. Bridgestone Americas Tire Operations LLC, 8th Cir., Nos. 15-2042, 15-2428 (Aug. 4, 2016).

Professional Pointer: The FMLA presents many practical challenges for employers, including the need to properly calculate the 12-week leave allotment for employees who work nonstandard workweeks. Employers must remember that the FMLA treats voluntary overtime differently than mandatory overtime and must stay consistent by including mandatory overtime shifts in the leave allotment before deducting overtime shifts missed from the allotment.

Jeffrey Rhodes is an attorney with Doumar Martin in Arlington, Va.



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