Angry woman - smallWhat is your employee really doing on his lunch break? This time, we aren’t worried about an employee engaging in some sort of nefarious misconduct. Instead, our bigger concern is that your employee might be doing something even more dastardly…getting some work done! Are you aware that your employee is working through lunch? Even more importantly, what if you specifically told them not to?  And how does that impact FMLA?

Only employees who have worked 1,250 hours during the 12 months prior to the start of a leave are eligible for FMLA.  Whether an employee has met this threshold can be tricky when the time worked is right on the edge. And employers track and measure time in different ways. Which measure should an employer use – and which measure will a court rely upon – timecards, an established schedule, an employee’s recollection, or something else?

As is often the case, we will conclude this discussion by imploring employers to exercise caution – and if the employee is close to that 1,250 threshold, you may find that it’s a whole lot less expensive to approve the FMLA than to find yourself in a multi-year litigation over how to do the math.

In the case of Caggiano v. Ill. Dept. of Corrections (Case No. 14 3378), the District Judge in the 7th Circuit was faced with this issue. The employee, a residential counselor at a jail, worked the night shift from 11:00pm – 7:00am, with a 30-minute lunch break. He requested leave to care for his ill mother from April 7 through April 10, 2012. Using his timesheets, his employer found that he would not have met the 1,250 hours requirement until April 15, five days after his leave concluded. His leave was denied and ultimately he was terminated for violating the attendance policy.

The employee claimed that his 30-minute lunch break each day should have counted as hours worked, since he was not “relieved” and able to leave the premises and instead ate on duty with the inmates.  The Court looked to precedent under the Fair Labor Standards Act, which does not allow a true meal break to be counted in hours worked, but does allow it when the employee is not “completely relieved from duty for the purposes of eating regular meals.” Further, a meal period is not considered work time if the employee’s time is not spent predominantly for the benefit of the employer. Here, the Court sided with the employee, and found that the employee’s argument and testimony were – at the very least – enough to prevent the employer from preliminarily dismissing the case.

In the Caggiano case, the Court didn’t find the employer’s lack of knowledge that the employee was working through his lunch break to be a game changer, and instead found that the employer “had a duty to ensure that [employee] was not working through his breaks if it did not want him to.”

If this employer could go back and do it all over again, we are guessing they might thread this needle a little differently. Even by their own math, the employee was less than two weeks from reaching eligibility. Years and no doubt many dollars spent on litigation later, and this case is still winding its way through the 7th Circuit court system. If your employee is wavering right on the edge of eligibility and there is a chance some extra hours worked would add just enough time, think long and hard before you make the call. Or you may find yourself setting some unwanted legal precedent in your circuit!

To keep your company out of the hot seat, consider outsourcing your FMLA administration with Reed Group. We offer clients up-to-the-minute compliance monitoring and system support, in addition to access to our user-friendly LeaveAdvisor product that breaks down complicated issues. For more information, please feel free to contact us at 800-347-7443.




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