Avoiding the many pitfalls associated with leave under the Family and Medical Leave Act is no easy task for employers. Complex issues can especially arise when employers are faced with administering intermittent leave for exempt employees, as defined by the Fair Labor Standards Act.
The FLSA establishes minimum wage and overtime pay standards. Certain employees – namely those working in “white-collar” jobs – are exempt from these requirements. Therefore, these employees may generally work more than 40 hours per week without being entitled to statutory overtime pay. However, in the event an exempt employee works more than 40 hours per week and is eligible for intermittent leave under the FMLA, employers sometimes inadvertently miscalculate the amount of leave the employee is entitled to.
Employees who qualify for intermittent leave under the FMLA are entitled to 12 weeks of leave. When a full-time non-exempt employee becomes eligible for intermittent leave, this typically results in the employer multiplying the hours worked (40) by the number of weeks (12) to determine the number of hours of leave the employee is entitled to – in this example 480 hours. Employers sometimes err when exempt employees who work more than 40 hours per week qualify for intermittent leave. In those cases, the employer is still required to consider the hours worked, even though the additional hours (those hours in excess of 40 hours) may not result in the receipt of overtime pay. For example, if a FLSA exempt employee works 45 hours per week and is otherwise eligible for intermittent leave under the FMLA, the employee would be entitled to 540 hours of intermittent leave, not 480 hours. These facts sometimes pose a challenge for employers because many neglect to record the hours worked by exempt employees, while others simply fail to calculate intermittent leave using the appropriate formula.
In an era of increased awareness of rights, heightened enforcement and substantial civil judgments, employers are encouraged to revisit leave policies and internal approval procedures to limit exposure. For more information concerning the impact of the FMLA and FLSA on your business, contact a member of the firm’s Labor & Employment Law Practice Team.
