Pension & Benefits News FMLA reg allows weekend pay bump to be premised on attendance
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Thursday, January 24, 2019

FMLA reg allows weekend pay bump to be premised on attendance

By Pension and Benefits Editorial Staff

A hospital employer did not violate the FMLA when it no longer paid a weekend nurse a 30% shift differential due to absences that exceeded the allotted contractual amount, some of which were FMLA leave, ruled a federal district court in Arkansas, granting the employer’s motion for summary judgment. The court explained that an FMLA "regulation explicitly allows employers to withhold a bonus or ‘other payment’ that is based on the achievement of a goal related to hours or attendance. Even if the employee does not meet the goal due to FMLA leave, the employer may withhold the payment—so long as the employer would withhold it for non-FMLA leave as well." That was the case here. Summary judgment was also granted against the employee’s disability discrimination claims because she failed to make a prima facie showing of causation under the ADA or Rehab Act.

Under the employer’s policy, all nurses who worked weekend shifts received a 10% weekend differential increase in pay, but if they signed an optional agreement to not miss more than 6 weekend shifts over a six-month period, they would receive a 30% differential. The employee signed the contract, but then missed more than six weekend shifts due to FMLA leave. When she returned to work, the employer stopped her 30 percent weekend pay differential. After she continued to clock in using the 30 percent differential code, despite being told she was not receiving such pay anymore, she was terminated for falsifying time records. She filed suit under the FMLA, the ADA, the Rehabilitation Act, and 42 U.S.C. § 1983, as well as state law. The employer moved for summary judgment on all claims.

FMLA claim fails. The employee’s FMLA claim hinged on whether the employer could lawfully discontinue the 30% shift differential because of absences that included FMLA leave. Finding no violation here, the court explained that an applicable "regulation explicitly allows employers to withhold a bonus or ‘other payment’ that is based on the achievement of a goal related to hours or attendance. Even if the employee does not meet the goal due to FMLA leave, the employer may withhold the payment—so long as the employer would withhold it for non-FMLA leave as well." Thus, "absences caused by FMLA leave may count as absences with respect to bonuses, so long as other leave is treated the same way."

Although the regulations also state that "[a]n employee is entitled to be restored to a position with the same or equivalent pay premiums, such as a shift differential," that language applies when the shift differential is not premised on hours worked or an attendance record.

Here, the shift differential was premised on attendance and the contract treated all absences the same, regardless of whether they were covered by FMLA. Consequently, the employer’s determination that the employee did not qualify for the differential after missing six shifts, including some FMLA leave, did not violate the FMLA.

ADA and Rehabilitation Act claims fail. The employee’s ADA and Rehabilitation Act claims also failed because she could not demonstrate causation. She asserted that she was discriminated and retaliated against because she requested accommodation in the form of leave. When she returned from leave, she no longer qualified for the pay differential, which the court assumed was an adverse action. Though she could show a connection between the lost differential and her leave, she could not draw a connection between the loss of her pay differential and her disability. The weekend option contract treated all absences the same and she no longer qualified for the differential because she missed too many shifts. She was treated like any nurse who agreed to the weekend option contract and missed the same number of shifts for reasons other than disability, so there was no discrimination here.

Other claims. The employee’s breach of contract claims failed because the university trustees were protected by sovereign immunity and the individuals were not parties to the weekend option contract. She also sued the individual capacity defendants under Section 1983 and the Arkansas Civil Rights Act, arguing the loss of her differential without notice violated due process, but she could point to nothing in Arkansas law that would entitle her to the shift differential despite having missed more than six shifts.

SOURCE: Flowers v. McCartney, (E.D. Ark.), No. 4:17-cv-00604-JLH, January 8, 2019.

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