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In Donnelly v. Greenburgh Central School District No.
7, the Second Circuit Court of Appeals made an important
ruling in a case under the Family and Medical Leave Act
("FMLA") that could have significant impact on cases
brought under the Fair Labor Standards Act ("FLSA").
Plaintiff, a high school teacher, sued the School District
claiming, inter alia, that it had denied him tenure in
retaliation for his having taken FMLA leave. During the first two
years of his probationary period, Plaintiff consistently received
some of the highest possible evaluation ratings. In the final year
of the probationary period, Plaintiff became sick and required
surgery, which forced him to miss approximately seven days of
teaching. Thereafter, Plaintiff's evaluation ratings began to
decline, with each one noting and criticizing Plaintiff's
absences, including those taken after his surgery. On the basis of
these evaluations, Plaintiff was denied tenure.
On summary judgment, the Defendants successfully argued that
Plaintiff was not eligible for FMLA leave, and thus could not be
retaliated against on that basis. Under his union's Collective
Bargaining Agreement ("CBA"), he had worked only 1,247
hours within the prior year, which was three less than the 1,250
hours required to be eligible for FMLA leave. While the parties
agreed that a precise calculation under the CBA resulted in 1,247
hours, Plaintiff argued that he had performed work-related
responsibilities beyond the regular school day hours. The
magistrate judge to whom the summary judgment motion was referred
rejected Plaintiff's argument and concluded that he could not
establish that he had worked the 1,250 hours required for FMLA
eligibility. The Court of Appeals ultimately reversed this
conclusion and remanded the case for trial.
To determine whether an employee satisfies the FMLA's 1,250
hours requirement, the legal standards established under the FLSA
apply. Those standards include a Department of Labor regulation
that places on the employer the burden of showing that the employee
has not worked the requisite number of hours if the
employer did not maintain an accurate record of hours, regardless
of the employee's exempt or non-exempt status. That is, in
order to prove that a full-time employee is not eligible for FMLA
leave, the employer must prove that the employee did not work 1,250
hours during the previous 12 months. The calculation of hours for
these purposes is not limited by CBAs or other agreements that do
not accurately reflect all of the hours an employee has worked. In
light of these regulations, the Second Circuit concluded that where
– as here – a plaintiff alleges that the CBA
did not accurately reflect all of his actual hours worked, the
burden – described as "not heavy, but []
specific" – of showing that the employee does not
meet the 1,250 hours requirement rests with the employer.
Applying these principles, the Second Circuit reversed summary
judgment and remanded the case to the District Court for trial,
where a jury will "determine how much time, if any at all,
[Plaintiff] worked beyond that specified in the CBA, and whether
such time was compensable under the principles of the FLSA."
With respect to the latter question, an activity must be "an
integral and indispensable part of the principal activity of the
employment" in order to be compensable.
Given the ever-increasing mobile and remote-access nature of
employment relationships, and the decline in the traditional 9-to-5
model, the decision in this FMLA case may have significance in
future FLSA cases within the Second Circuit. First, this case
serves as a reminder that tasks performed by non-exempt employees
outside of the traditional office environment – from
responding to e-mails, to preparatory tasks, to completing
assignments at home – are compensable if they are
"integral and indispensable." Second, while the FLSA does
not require employers to maintain hourly records for exempt
employees, the failure to do so could lead to an adverse result in
other lawsuits, including those under the FMLA. Combined, these are
important considerations for employers to take into account when
evaluating their policies and practices with respect to tracking,
keeping, and maintaining accurate time records for their employees,
both exempt and non-exempt.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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