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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. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

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