In Donnelly v. Greenburgh Central School District No. 7, the Second Circuit Court of Appeals made an important ruling in a case under the Family and Medical Leave Act (“FMLA”) that could have significant impact on cases brought under the Fair Labor Standards Act (“FLSA”). Plaintiff, a high school teacher, sued the School District claiming, inter alia, that it had denied him tenure in retaliation for his having taken FMLA leave. During the first two years of his probationary period, Plaintiff consistently received some of the highest possible evaluation ratings. In the final year of the probationary period, Plaintiff became sick and required surgery, which forced him to miss approximately seven days of teaching. Thereafter, Plaintiff’s evaluation ratings began to decline, with each one noting and criticizing Plaintiff’s absences, including those taken after his surgery. On the basis of these evaluations, Plaintiff was denied tenure.
On summary judgment, the Defendants successfully argued that Plaintiff was not eligible for FMLA leave, and thus could not be retaliated against on that basis. Under his union’s Collective Bargaining Agreement (“CBA”), he had worked only 1,247 hours within the prior year, which was three less than the 1,250 hours required to be eligible for FMLA leave. While the parties agreed that a precise calculation under the CBA resulted in 1,247 hours, Plaintiff argued that he had performed work-related responsibilities beyond the regular school day hours. The magistrate judge to whom the summary judgment motion was referred rejected Plaintiff’s argument and concluded that he could not establish that he had worked the 1,250 hours required for FMLA eligibility. The Court of Appeals ultimately reversed this conclusion and remanded the case for trial.
To determine whether an employee satisfies the FMLA’s 1,250 hours requirement, the legal standards established under the FLSA apply. Those standards include a Department of Labor regulation that places on the employer the burden of showing that the employee has not worked the requisite number of hours if the employer did not maintain an accurate record of hours, regardless of the employee’s exempt or non-exempt status. That is, in order to prove that a full-time employee is not eligible for FMLA leave, the employer must prove that the employee did not work 1,250 hours during the previous 12 months. The calculation of hours for these purposes is not limited by CBAs or other agreements that do not accurately reflect all of the hours an employee has worked. In light of these regulations, the Second Circuit concluded that where – as here – a plaintiff alleges that the CBA did not accurately reflect all of his actual hours worked, the burden – described as “not heavy, but  specific” – of showing that the employee does not meet the 1,250 hours requirement rests with the employer.
Applying these principles, the Second Circuit reversed summary judgment and remanded the case to the District Court for trial, where a jury will “determine how much time, if any at all, [Plaintiff] worked beyond that specified in the CBA, and whether such time was compensable under the principles of the FLSA.” With respect to the latter question, an activity must be “an integral and indispensable part of the principal activity of the employment” in order to be compensable.
Given the ever-increasing mobile and remote-access nature of employment relationships, and the decline in the traditional 9-to-5 model, the decision in this FMLA case may have significance in future FLSA cases within the Second Circuit. First, this case serves as a reminder that tasks performed by non-exempt employees outside of the traditional office environment – from responding to e-mails, to preparatory tasks, to completing assignments at home – are compensable if they are “integral and indispensable.” Second, while the FLSA does not require employers to maintain hourly records for exempt employees, the failure to do so could lead to an adverse result in other lawsuits, including those under the FMLA. Combined, these are important considerations for employers to take into account when evaluating their policies and practices with respect to tracking, keeping, and maintaining accurate time records for their employees, both exempt and non-exempt.