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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. For many years this young man was "family" being my cousin's son. Then he decided to ignore my existence and that of my daughter who was very hurt by his actions after growing up admiring, Jason. Glad he is doing well, as for his opinion, if you care so much you wouldn't ignore the feelings of those who cared so much about you for years, Jason.

  2. Good riddance to this dangerous activist judge

  3. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  4. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  5. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

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