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FMLA leave doesn't accrue hours for benefits

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The 7th Circuit Court of Appeals has affirmed an Indiana District judge's decision that an employee on family medical leave doesn't accrue those hours for benefits and can be fired for violating attendance policies.

The decision comes in Michelle L. Bailey v. Pregis Innovative Packaging, Inc., No. 09-3539, which involves a Family and Medical Leave Act dispute out of the Northern District of Indiana's South Bend Division. U.S. Judge Philip Simon had granted summary judgment for the employer, which had used its "no-fault attendance policy" to fire Bailey for absenteeism during a 12-month period.

She claimed two absences in July 2006 were allowed through the FMLA and couldn't be used in the firing decision, but her employer disagreed that those absences were covered because she hadn't actually worked 1,250 hours the previous year in order to be eligible for FMLA time off. Bailey argued that her time off in the preceding year should have been credited and not counted toward the attendance policy.

"There is no basis for such a contortion of the statute - no hint in the statute or elsewhere that Congress envisaged and approved such a circumvention of the requirement than an applicant for FMLA leave have worked 1,250 hours in the preceding 12 months," 7th Circuit Judge Richard Posner wrote. "We can't find a case directly on point, but are supported in our conclusion by the refusal of courts including our own to interpret the statutory term 'service' in an expansive fashion that would dilute the 1,250-hour requirement."

The 7th Circuit also addressed another of Bailey's arguments: that Pregis Innovative Packaging retaliated against her for taking FMLA leave by not wiping clean some of her past absences at the end of a 12-month period. The issue was whether this counts as an "employment benefit" as defined by the FMLA. Weighing both a Department of Labor position on the issue and specific caselaw, the 7th Circuit decided that these absenteeism point removals should be considered an employment benefit.

However, Bailey doesn't get any benefit from this decision because the court has held that an employee can't accrue any employment benefits during any period of leave.

"An employee must not be penalized by being deprived, just because he is on family leave, of a benefit that he has earned (i.e., that has been accrued to him)," Judge Posner wrote. "But by the same token he cannot, when on family leave, accrue benefits that accrue only by working."

The defendant's no-fault attendance policy is a lawful way to determine whether an employee has, despite absences, a sufficiently strong commitment to working for that employer, the court found. Bailey didn't show that commitment in this case, and the District judge's decision is affirmed.

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  1. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  2. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  3. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  4. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

  5. I totally agree with John Smith.

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