The Tricky Connection Between FMLA & Overtime

If your company requires employees to work mandatory overtime, it’s important to factor those extra hours into your calculations when determining employees’ FMLA entitlement.

Failing to do so can be an expensive mistake, as an Eighth Circuit decision shows. That’s one of the key takeaways from Hernandez v. Bridgestone Americas Tire Operations.

Mandatory overtime

Some background: When employee Lucas Hernandez was working for Bridgestone, he took intermittent FMLA leave to care for his sick son.

Just when he was close to exhausting leave, Hernandez volunteered for overtime shifts to make some extra money.

Hernandez was then placed on the company’s OT schedule. Because he was placed on the OT schedule, that made the OT shifts mandatory. If Hernandez missed any scheduled overtime shifts, those absences would be treated like any other absence under Bridgestone policy.

After Hernandez missed several OT shifts for an FMLA-qualifying reason – caring for his sick son – Bridgestone said he exhausted his leave.

The company then fired him for having too many unexcused absences.

Hernandez responded with an FMLA interference lawsuit.

Where the company went wrong

A jury sided with Hernandez, and the district court ordered Bridgestone to pay $76,318 in damages.

On appeal, the Eighth Circuit affirmed, finding the company “interfered with Hernandez’s rights under the FMLA by improperly calculating his FMLA-leave entitlement.” It upheld the jury’s award.

So what exactly did Bridgestone do wrong?

Even though the company included the mandatory OT as FMLA time used, it didn’t include the overtime hours when calculating his leave entitlement.

And that’s a requirement under the FMLA when mandatory overtime is part of the equation.

More than 40 hours required? Add it

Under the FMLA, if an employee’s normal workweek includes mandatory overtime, he or she is entitled to more than the usual 40 hours of FMLA leave per week entitlement for a normal workweek consisting of eight hours per day, five days per week.

How much extra time the employee is entitled to depends on the amount of overtime worked. Say an employee works an hour of overtime each day for a total of 45 hours per week. That employee is entitled to 540 hours (45 hours per week x 12 weeks of FMLA) of FMLA leave annually.

If the OT varies, the regs say: “The employer should use a weekly average of the hours scheduled over the 12 months prior to the beginning of the FMLA leave to calculate the employee’s leave entitlement.”

For even more help handling tricky FMLA compliance issues, download our comprehensive new blueprint, The Family and Medical Leave Act: An Employer’s Guide.

Hernandez v. Bridgestone Americas Tire Operations LLC, 831 F.3d 940 (8th Cir. 2016).