California Employment Law
California Employment Law Questions Answered by Legal Experts
Thanks for your question and good evening.
Here is the law on FMLA and hours worked.
n order to determine whether an employee has met the 1250-hour and twelve-month service requirements, the employer must know what hours and time on the payroll to include. The DOL applies essentially the same rules for determining hours worked to the FMLA as it does when verifying an employer's compliance with the overtime statutes under the FLSA.
Periods of time during which the employee is completely relieved of duty are not counted toward the 1250-hour requirement, even if the employer compensates such time under its fringe benefit policies. The 1250-hour requirement counts only hours actually worked. The types of periods excluded from the computation would include:
paid or unpaid vacation leave
paid or unpaid sick leave
paid or unpaid parental leave
paid or unpaid holidays
other personal leave
FMLA leave periods
furloughs or suspensions
However, any week during which an employee is maintained on the payroll, even if the employee is off work for that week, must be counted toward the twelve-month service requirement. DOL guidance on what to include and exclude from the 1250-hour and twelve-month requirements is found in Wage-Hour Opinion Letter FMLA-70, August 23, 1995.
The same letter ruling also makes clear that for FMLA purposes, there is no distinction between FLSA overtime and non-overtime hours; "an hour is an hour is an hour."
Wage-Hour Opinion Letter FMLA-78, February 14, 1996, notes that full-time teachers are presumed to meet the 1250-hour test, in view of the time spent away from school preparing lessons and tests and grading students' work. The employer may attempt to rebut that presumption, but can do so only with specific work records or documentation of interviews with the employee.
In an interesting letter ruling impacting upon the temporary help industry, Wage-Hour Opinion Letter FMLA-37, July 7, 1994, stated that a temporary help firm and its client employer "are considered joint employers for purposes of determining employer coverage and employee eligibility" under the FMLA, referring to the applicable regulation at 29 C.F.R. 825.106(d). Thus, ruled DOL, "the time that the employee was employed by the temporary help agency would be counted towards the eligibility tests." This ruling was supported in a 1997 court decision, Miller v. Defiance Metal Products, Inc., 989 F.Supp. 945, 4 WH Cases2d 613 (N.D. Ohio 1997). The court concluded that reclassification of an employee from temporary to "permanent" does not alter the FMLA time frame used in determining whether an employee has worked at least twelve months, and that the time frame for a temporary help firm employee who is later hired by the client employer begins to run from the date that the employee is first assigned to work at the client's facility.
According to a policy memorandum issued by the DOL on July 22, 2002, if any employees go on military duty-related leave and return to employment, they must be credited with the hours they would have worked but for the military duty, as well as the months they spent in such duty. DOL indicated that in most cases, the calculation would be based upon the schedule the employee had worked in the period before going on military leave. In other words, the employer must count the hours that the employee would have worked toward the 1,250-hour requirement, and it must count the actual number of weeks or months spent in such duty toward the 12-month service requirement. Thus, any time an employee returns from military leave, the result could be that he or she will be eligible for FMLA leave if they need it upon their return.
Reference and you can complain here
It's 1250 hours/12 months since last FMLA
If you have a follow-up question, please remember that there might be a delay between your follow up questions and my answers because I may be helping other clients or taking a break.
Please remember to click the ACCEPT button so that I can get credit for the answer. Leaving a BONUS (tip) & POSITIVE FEEDBACK after you accept is very much appreciated.
Please be aware that my answer is not legal advice, it is merely information and no attorney client relationship has been formed. You should always contact a local attorney for legal advice.
DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.
The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).