Second Circuit Finds that After-Hours Work is Considered “Hours Worked” for Purposes of Determining Eligibility for Leave Under the FMLA

Donnelly v. Greenburgh Central School Dist. No. 7, No. 11-cv-2448 (2d Cir., Aug. 10, 2012): The plaintiff, a former high school teacher, claimed that the defendants had unlawfully denied him tenure in retaliation for his having taken protected leave pursuant to the Family and Medical Leave Act (FMLA). A key issue in the dispute was the plaintiff’s eligibility for leave under the FMLA, which is triggered by exceeding a threshold of 1,250 hours worked during the preceding year. The plaintiff worked 172 school days and, per the governing union contract, each workday was capped at 7.25 hours. As a result, the plaintiff worked only 1,247 hours. The plaintiff argued, and the panel agreed, that in assessing whether the FMLA threshold was met, the court must take into account that teachers typically work beyond the mandated workday. The Second Circuit reversed the trial court’s decision granting summary judgment, and found that a material issue of fact existed as to whether or not the 1,250 hour FMLA threshold had been met. The appellate court reasoned that the plaintiff undoubtedly spent time at home—grading papers or putting together lesson plans—to prepare for class. In reaching its decision, the Second Circuit looked to a Sixth Circuit case involving flight attendants and satisfaction of the FMLA hours worked threshold. There, the court found that “hours worked” included time spent at check-in or customs. These decisions reflect a growing consensus that “hours worked” are not strictly confined to designated workday hours.

While Donnelly is an FMLA retaliation case, the decision has the potential to have a larger impact on wage-and-hour practice. The case reinforces the need for employers to be aware that the duties and assignments extending beyond a non-exempt employee’s workday may be deemed compensable hours worked warranting overtime pay. In addition, Donnelly emphasizes the importance of keeping accurate time records for both non-exempt and exempt employees should they seek to challenge their “hours worked.”