FMLA previous ee

njjel

Do I understand correctly that if an ee was previously employed by the company for at least 12 months and 1250 hours that if they are re-hired their previous time qualifies them to the leave even if the ee has been gone 3 or 4 years?

NaeNae55

In a recent court case, the judge stated that the law didn't say the 12 months had to be continueous, and so allowed it in. However, it seems to me that a higher court ruled that having to keep track of employees forever just for the purpose of qualifying fmla was too much of a burden on employers and reversed the earlier decision.

Anyone else remember this?


Nae

njjel

I haven't seen that as yet. If others have, could you please respond?

Susan in La

If we have a record of the previous 12 months, we count that toward meeting the 12 months qualification. However, the 1250 hours do have to be within the past year, as I understand it. So the person who has been gone 3-4 years will not qualify for FMLA until they have worked 1250 hours under their current term of employment.

System

The First Circuit Court of Appeals held that the 12 months need not be continuous. The only way that decision would be reversed would be by the Supreme Court, and I know the Supreme Court has not reviewed that case, since the First Circuit decision just came out in December 2006. While the First Circuit's decision is not binding on other circuits, other circuits typically will look to it for guidance. Considering also that the DOL regs are to be given deference in interpreting the FMLA, and the DOL regs specifically state that the 12 months need not be continuous, I think it is likely that other circuits will follow the same reasoning as the First.

It is always the case, however, that there must have been 1250 hours worked in the 12 months prior to the leave, so if the 1250 hours are not there, it doesn't matter how long the employee was employed prior to the rehire. Also, since a full-time employee typically achieves 1250 hours in 7-8 months, you're only talking about having to determine whether the employee previously worked for the employer for at least 4-5 months. I think most times this wouldn't be too difficult to determine (even if the employment was so long ago that no one honestly has any clue how long the employee worked there, the employee could probably establish it with info from his W-2 forms, even), I'm doubtful that a court would find any tracking requirement too burdensome on the employer (especially since all you'd really need to track is hire date/term date, which could be kept in a simple electronic database). Indeed, the employer isn't actually *required* to track anything - it's only if the employer wants to challenge potential future FMLA that it would choose to keep that information. An employer could decide that the likelihood of having a situation where a rehire is asking for FMLA at the 7-8 month mark of his employment and had fewer than five months service during his last stint with the employer is low enough that it will just grant the FMLA in questionable cases rather than bothering to track the info.

As you probably know, the DOL recently requested feedback on the FMLA, the deadline for which was earlier this year. I know that some contributors have raised the argument that it would be burdensome to track previous employment info indefinitely and have therefore suggested that the DOL adopt new regulations that would limit the period of time from which the 12 months could be counted. For example, if the standard time period for keeping personnel records is three years after termination, the suggestion would be that the 12 months has to have been worked within a three-year time period. So maybe the DOL will recognize that burden as significant and respond accordingly. It'll be interesting to see what the DOL does with these and other comments that have been submitted.

Catbert46

Our attorney showed me a case where an employee had been gone from a company for 5 years and had only been re-employed for 6 months when they went out on leave. The court ruled that because they had met the 12 months in their previous employment with that company they had to allow it.

njjel

What about the 1250 hours? Do they or do they not have to meet that requirement again?

LindaS

An EE has to continuously meet the 1250 hours requirement. For example, say an EE is off work for 12 weeks, takes a variety of layoffs plus vacation. If their total hours WORKED, not paid, is less than 1250 for the 12 months immediately preceeding the FMLA, they do not qualify UNTIL they meet the 1250 hours.

Understand?

ACU Frank

Bingo. Susan and Linda have it down pat.