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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. My husband financed a car through Wells Fargo In dec 2007 and in Jan 2012 they took him to court to garnish his wages through a company called autovest llc . Do u think the statue of limitations apply from the day last payment was received or from what should have been the completion of the loan

  2. Andrew, you are a whistleblower against an ideologically corrupt system that is also an old boys network ... Including old gals .... You are a huge threat to them. Thieves, liars, miscreants they understand, identify with, coddle. But whistleblowers must go to the stake. Burn well my friend, burn brightly, tyger.

  3. VSB dismissed the reciprocal discipline based on what Indiana did to me. Here we have an attorney actually breaking ethical rules, dishonest behavior, and only getting a reprimand. I advocated that this supreme court stop discriminating against me and others based on disability, and I am SUSPENDED 180 days. Time to take out the checkbook and stop the arrogant cheating to hurt me and retaliate against my good faith efforts to stop the discrimination of this Court. www.andrewstraw.org www.andrewstraw.net

  4. http://www.andrewstraw.org http://www.andrewstraw.net If another state believes by "Clear and convincing evidence" standard that Indiana's discipline was not valid and dismissed it, it is time for Curtis Hill to advise his clients to get out the checkbook. Discrimination time is over.

  5. Congrats Andrew, your street cred just shot up. As for me ... I am now an administrative law judge in Kansas, commissioned by the Governor to enforce due process rights against overreaching government agents. That after being banished for life from the Indiana bar for attempting to do the same as a mere whistleblowing bar applicant. The myth of one lowly peasant with the constitution does not play well in the Hoosier state. As for what our experiences have in common, I have good reason to believe that the same ADA Coordinator who took you out was working my file since 2007, when the former chief justice hired the same, likely to "take out the politically incorrect trash" like me. My own dealings with that powerful bureaucrat and some rather astounding actions .. actions that would make most state courts blush ... actions blessed in full by the Ind.S.Ct ... here: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

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