By Lorene D. Park, J.D. Although an employee had the choice of whether to put his name on a list as available for certain overtime shifts, once he did that and was selected, the overtime shift became mandatory and should have been included by his employer when it calculated his allotment of FMLA leave for the year, ruled the Eighth Circuit. Because the employer did not include the employee’s overtime at all when calculating his allotted leave, it denied him FMLA benefits to which he was entitled and summary judgment was affirmed in the employee’s favor (Hernandez v. Bridgestone Americas Tire Operations, LLC, May 13, 2016, Beam, C.). Attendance program. The tire manufacturer for which the employee worked had an attendance program for hourly employees, which was incorporated into a collective bargaining agreement. Under the program, when an employee fails to report for a shift, regular or overtime, it is considered an “incident of absence.” The program employs progressive discipline. In a nine-month period, five absences will result in counseling and additional absences within that period lead successively to a written warning, written reprimand, final written warning, and termination. FMLA leave is excused, as is leave for jury duty, bereavement, or accident and sickness leave. Overtime. Work schedules are published in October and do not change during the year. Because the employer has continuous manufacturing, overtime shifts are often necessary. When overtime is needed, the employer posts an overtime sign-up sheet and employees indicate interest and availability. The list of selected employees is posted and employees are required to check the list and to be present for shifts—absences are subject to discipline under the attendance program unless excused. If an employee misses a 12-hour shift for an FMLA-qualifying reason, the overtime shift is deducted from the employee’s FMLA allotment. FMLA leave. In July 2010, the employee was approved for intermittent FMLA leave to care for his son, who has asthma. In November 2011, he requested additional intermittent leave. HR based his FMLA leave on his fixed work schedule. Between October 31, 2011, and July 15, 2012, he missed work 54 times, including six overtime shifts. Of the absences, 42 were excused as FMLA leave or accident and sickness leave. Seven were unexcused and he received a written warning. The employee exhausted his FMLA leave on July 10 and then missed another two shifts for FMLA-qualifying reasons on July 11 and 12. Because he had exhausted his leave, the absences were counted under the attendance program and he received a written reprimand and a final warning. When he failed to report on July 13 and 15, he was terminated. Employee wins on interference claim. In the employee’s subsequent FMLA suit, both parties moved for summary judgment. The court ruled in favor of the employer on the discrimination, retaliation, and harassment claims, but ruled in the employee’s favor on his FMLA interference claim. It ruled that absences for missed overtime shifts should not have been deducted from his FMLA entitlement because he initially volunteered for the sporadic overtime. Moreover, because the employer treated his occasional overtime as voluntary in calculating his leave allotment, it had to treat the overtime hours as voluntary for purposes of deducting hours from his FMLA entitlement. A jury awarded him $75,681; he also won liquidated damages and reinstatement. He then sought $113,586 in attorneys’ fees, but the court reduced that figure to $76,318. The employer appealed on the interference claim and the employee appealed as to attorneys’ fees. Affirmed on other grounds. Affirming, the appeals court noted that, with respect to the FMLA interference claim, the parties disputed only whether the employer had denied FMLA benefits to which the employee was entitled. Key to this consideration was whether the overtime missed by the employee was voluntary or mandatory, because voluntary overtime may not be counted against an employee’s allotment. To the Eighth Circuit, given the selection process in this case, the overtime was mandatory, and the district court erred in finding otherwise. Overtime became mandatory. Here, it was voluntary as to whether employees indicated their availability on the sign-up sheet, but once the employer’s selection was made, the employees were required to work the shift. And failing to report for a scheduled overtime shift, just like a regular shift, counted as an incident of absence. Essentially, the selected overtime shift became mandatory and was treated as part of the employee’s usual or normal workweek. The appeals court noted that its position comported with the DOL’s Final Rule on the issue. Interfered by not including overtime in FMLA entitlement. That said, because the overtime was mandatory, the employee’s overtime hours should also have been included by the employer when calculating his total FMLA-leave allotment. Given that his overtime hours varied from week to week, the employer should have calculated his leave in accordance with 29 C.F.R. §825.205(b)(3). Instead, the employee’s overtime hours were not considered at all. By scheduling mandatory overtime hours that were not included in the employee’s FMLA-leave allotment and yet were deducted from his FMLA entitlement when he missed an overtime shift, the employer denied him FMLA benefits to which he was entitled. Summary judgment for the employee was therefore affirmed. Attorneys’ fees. The appeals court also affirmed as to the lower court’s decision to reduce the employee’s recoverable fees for lack of success on some of his claims. The district court gave a “well-articulated reason” for the reduction and there was no abuse of discretion.
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