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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. Mr. Ricker, how foolish of you to think that by complying with the law you would be ok. Don't you know that Indiana is a state that welcomes monopolies, and that Indiana's legislature is the one entity in this state that believes monopolistic practices (such as those engaged in by Indiana Association of Beverage Retailers) make Indiana a "business-friendly" state? How can you not see this????

  2. Actually, and most strikingly, the ruling failed to address the central issue to the whole case: Namely, Black Knight/LPS, who was NEVER a party to the State court litigation, and who is under a 2013 consent judgment in Indiana (where it has stipulated to the forgery of loan documents, the ones specifically at issue in my case)never disclosed itself in State court or remediated the forged loan documents as was REQUIRED of them by the CJ. In essence, what the court is willfully ignoring, is that it is setting a precedent that the supplier of a defective product, one whom is under a consent judgment stipulating to such, and under obligation to remediate said defective product, can: 1.) Ignore the CJ 2.) Allow counsel to commit fraud on the state court 3.) Then try to hide behind Rooker Feldman doctrine as a bar to being held culpable in federal court. The problem here is the court is in direct conflict with its own ruling(s) in Johnson v. Pushpin Holdings & Iqbal- 780 F.3d 728, at 730 “What Johnson adds - what the defendants in this suit have failed to appreciate—is that federal courts retain jurisdiction to award damages for fraud that imposes extrajudicial injury. The Supreme Court drew that very line in Exxon Mobil ... Iqbal alleges that the defendants conducted a racketeering enterprise that predates the state court’s judgments ...but Exxon Mobil shows that the Rooker Feldman doctrine asks what injury the plaintiff asks the federal court to redress, not whether the injury is “intertwined” with something else …Because Iqbal seeks damages for activity that (he alleges) predates the state litigation and caused injury independently of it, the Rooker-Feldman doctrine does not block this suit. It must be reinstated.” So, as I already noted to others, I now have the chance to bring my case to SCOTUS; the ruling by Wood & Posner is flawed on numerous levels,BUT most troubling is the fact that the authors KNOW it's a flawed ruling and choose to ignore the flaws for one simple reason: The courts have decided to agree with former AG Eric Holder that national banks "Are too big to fail" and must win at any cost-even that of due process, case precedent, & the truth....Let's see if SCOTUS wants a bite at the apple.

  3. I am in NJ & just found out that there is a judgment against me in an action by Driver's Solutions LLC in IN. I was never served with any Court pleadings, etc. and the only thing that I can find out is that they were using an old Staten Island NY address for me. I have been in NJ for over 20 years and cannot get any response from Drivers Solutions in IN. They have a different lawyer now. I need to get this vacated or stopped - it is now almost double & at 18%. Any help would be appreciated. Thank you.

  4. I am in NJ & just found out that there is a judgment against me in an action by Driver's Solutions LLC in IN. I was never served with any Court pleadings, etc. and the only thing that I can find out is that they were using an old Staten Island NY address for me. I have been in NJ for over 20 years and cannot get any response from Drivers Solutions in IN. They have a different lawyer now. I need to get this vacated or stopped - it is now almost double & at 18%. Any help would be appreciated. Thank you.

  5. Please I need help with my class action lawsuits, im currently in pro-se and im having hard time findiNG A LAWYER TO ASSIST ME

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