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Just because it's that
I-Can't-Believe-There's-One-Week-Left-In-August time of
year, doesn't mean there isn't some fun and exciting law
coming down the pike. An important decision was issued this
month by the Second Circuit for employment law generally, but also
for social media pundits.
In Donnelly v. Greenburgh Central School
District, the Second Circuit reversed the lower
court's decision to grant summary judgment to the defendant
employer and dismiss plaintiff's complaint. Plaintiff
alleged that he was denied tenure in retaliation for taking FMLA
leave. One of the primary issues on appeal involved the
defendant's argument that plaintiff was not entitled to FMLA
leave in the first place because he worked only 1,247 hours in the
preceding year (the FMLA has a threshold 1,250-hour requirement to
be entitled to FMLA leave). Defendant had calculated the
hours by relying on a provision in the collective bargaining
agreement ("CBA"), which provided for a 7.25-hour workday
for teachers. Thus, adding up the hours for the days
that plaintiff worked, the defendant argued that he was three hours
short of the FMLA eligibility requirement.
What seemed like should be a simple issue to decide based on
pure math, was not. On appeal, the Second Circuit said that
summary judgment was inappropriate because it was for a jury to
decide the fact issue of how many hours the plaintiff had truly
worked, taking into account any after-hours work that he performed
(e.g., grading papers, lesson planning) beyond the 7.25
hours identified in the CBA. As the court held:
"In cases where a plaintiff avers that a relevant
compensation agreement – including [] a collective
bargaining agreement – do[es] not accurately reflect all
of the hours an employee has worked for or being in service to the
employer, . . . the employer has the burden of showing that the
employee has not worked the requisite hours. . . .
"A jury reviewing the evidence in this record might well
conclude that the evidence that [plaintiff] presents is
insufficient to persuade it to find that he spent three or more
hours beyond the CBA-maximum time engaged in activities integral to
his employment. That factual inquiry is not ours to
answer. The [defendant] has raised questions about the
credibility and probative force of [plaintiff's] evidence that
he worked enough additional compensable hours to qualify for FMLA
leave. But these questions are, on this record, to be
answered by the jury[.]"
Employer Take
Away: What should you as an employer
take away from this development?
Two important takeaways here:
1. It does not only
matter what working hours are identified in a contract, policy, or
other written document for a particular position. What
matters is the number of hours your employee is actually
working on a day-to-day basis. The Second Circuit's
decision continues to put common notions of "the burden
being on the one suing" on its head, by making an employer
have to prove that the employee didn't work if the employer is
placing eligibility under the law at issue.
2. There are social
media implications here, for, as we have blogged about before, it
is often difficult to keep up with the activities of your employees
outside the typical 9-5 office hours, and outside the four walls of
your traditional office. Whether responding to e-mails
while at a move theater, blogging on a company-owned site,
accessing your company's server remotely from home, or simply
speaking on the smart phone from the kitchen, an employee must be
paid for all hours "worked". And all hours
"worked" will be calculated for purposes of eligibility
under various employment laws.
It is vitally important for your company to develop a system of
keeping track of, recording, and acknowledging when your employees
are and are not working. It is not just an issue of
determining whether someone is properly classified as
"exempt" for overtime purposes, but, as this case
suggests, a broader employment law issue. Noteworthy in the
Second Circuit's Donnelly decision:
"[T]here is no indication in the record that the [employer]
maintained records of the working hours of the
teachers[.]"
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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