In cooking, lots of recipies call for seasoning with salt and pepper. In fact, its so common, that you might overlook it.
For employers, the simple ingredient to success that might be overlooked is an accurate time record. A new case out of the Second Circuit demonstrates why those records are important.
In Donnelly v. Greenburgh Central School District No. 7, the Court of Appeals was asked to review an FMLA summary judgment motion decision in favor of the employer. The employer argued that the employee was not eligible for FMLA because he only worked 1247 hours instead of the minimum 1250 required by statute.
Under the terms of the applicable collective bargaining agreement, the parties agreed that the employee worked at least 1247 hours, that is, 7 hours and 15 minutes per day for 172 days.
But the employee claimed that “most teachers regularly work in excess of a total of one hour before and after class.” And an evaluation of his performance noted that the employee “arrives to work in a professional manner; early, on time and often. He often stays late into the afternoon working with kids to ensure their success.
The Court of Appeals, in reversing, noted that the burden is on the employer to prove FMLA ineligibility. This is particularly true where the employer did not maintain an accurate record of hours, according to the applicable FMLA regulation 29 C.F.R. Sec. 825.110(c)(3). Because the number of hours worked is a factual question, it cannot be resolved on summary judgment.
In doing so, the court adopted a test from the Sixth Circuit which, it noted, appeared to be the only other case that has examined this regulation:
To succeed on a motion for summary judgment, a defendant must show that, in the plaintiff’s specific case, either the hours alleged could not have occurred or the hours alleged are not compensable as a matter of law “according to the principles established under the [FLSA].”
So while a time record may not be an exciting ingredient, it should be staple in every employer’s pantry.