The Sixth Circuit Court of Appeals recently held that employers that pay employees for more hours than they actually work are not required to count the non-work hours in determining an employee’s eligibility for leave under the Family Medical Leave Act (FMLA). In Mutchler v. Dunlap Memorial Hosp., the court concluded that a hospital-employer did not violate the FMLA by refusing to count “extra” hours, not worked but paid as part of an incentive program, toward the hours of service required for FMLA eligibility.

Facts & Applicable Law

Mutchler, the plaintiff, was a registered nurse at a hospital, where she participated in the “Weekender Program.” As an incentive to recruit nurses, the Weekender Program paid nurses that worked 12-hour shifts on two Saturdays and two Sundays in a two-week period for 68 hours of work instead of the 48 hours actually spent on duty. In April 2004, Mutchler requested FMLA time off to have the first of two carpal tunnel surgeries and the hospital approved her request. To be eligible for leave under the FMLA, an employee must have been employed for at least 12 months by the employer from which leave is sought and must have worked at least 1,250 hours during the previous 12-month period.

In May 2004, after Mutchler began her leave, the hospital discovered that she had only worked 1,242.8 hours during the 12-month period preceding the leave, falling short of the 1,250 hours required for FMLA protected leave. The hospital then informed Mutchler that she had not met the FMLA eligibility requirements and agreed to honor her first leave of absence, but informed her that she would not be able to use FMLA leave for other absences from work until she met the FMLA eligibility requirements. Nevertheless, Mutchler scheduled her second surgery. The hospital treated her second leave as not protected under the FMLA.

When Mutchler returned to work after her second leave, she found that the hospital had filled her position in the Weekender Program with another employee and that the hospital had scheduled her to work weekdays. When the hospital refused to restore her original schedule, Mutchler filed a lawsuit alleging that the hospital’s failure to restore her to weekend work violated the FMLA. The District Court found for the hospital and Mutchler appealed the ruling to the Sixth Circuit.

The Sixth Circuit Holds that “Hours of Service” Require Actual Work

Under the FMLA, as the court noted, the determining factor in deciding whether an employee has met the 1,250 hour requirement is the number of hours “worked within the meaning of the [Fair Labor Standards Act] FLSA.” Mutchler did not dispute that she actually worked only 1,242.8 hours during the 12 months preceding her leave. However, Mutchler argued that her “hours of service” included the 10 additional hours per week, which she did not work but for which she received compensation under the Weekender Program. Relying on the FLSA regulations promulgated and interpreted by the U.S. Department of Labor, the court rejected Mutchler’s argument and concluded that “hours of service” toward FMLA eligibility include “only those hours actually worked in the service and at the gain of the employer.”


The Dunlap decision makes it clear that employers1 are only required to give employees credit toward FMLA eligibility for hours which they actually work.2 Additionally, the decision illustrates the reason employers are advised not to take for granted any employee’s FMLA eligibility and to take the time to determine that the employee meets all three of the FMLA eligibility requirements: 1) employed for 12 months, 2) 1250 hours actually worked in the 12 months immediately preceding the leave, and 3) work at a work site where 50 or more of the employer’s employees work within 75 miles.