In Donnelly v. Greenburgh Central School District No. 7, the Court of Appeals for the Second Circuit recently highlighted the importance of keeping accurate time records for employees to determine Family Medical Leave Act (“FMLA”) eligibility. To be eligible for leave under the FMLA, an employee must work “at least 1,250 hours of service…during the previous 12-month period.” 29 U.S.C. § 2611(2)(A)(ii). According to the U.S. Department of Labor (“DOL”) regulations interpreting the FMLA, the employer has the burden of proving that this eligibility requirement has not been met. 29 C.F.R. § 825.110(c)(3).
Edward Donnelly, a school teacher, filed a retaliation lawsuit against the school district after he was denied tenure following his FMLA leave. On summary judgment, the school district argued that Donnelly was not eligible for FMLA because, according to his collective bargaining agreement, he had worked only 1,247 hours, 3 hours shy of the statutory minimum. Donnelly submitted an affidavit stating that he and “most teachers regularly work in excess of a total of one hour before and after class” and that he “typically worked a total of 1.5 hours before and after class every day.” Donnelly also submitted a performance evaluation which stated that he “arrive[d] to work in a professional manner, early, on time and often. He often stay[ed] late into the afternoon working with his kids to ensure their success.” Notwithstanding Donnelly’s evidence, the trial court granted summary judgment in favor of the school district. Donnelly appealed.
The Second Circuit reversed the summary judgment decision relying on the DOL regulations. The school board had not kept records of the hours Donnelly worked and, instead, had to turn to the collective bargaining agreement to estimate the hours he worked. In light of Donnelly’s affidavit detailing his excess hours and the performance evaluation, and because the discrepancy between the collective bargaining agreement calculation and the eligibility threshold was only 3 hours, the Second Circuit determined that the school board had not met its burden of proof.
The decision highlights the importance of employers keeping accurate time records for all hours worked by employees, even employees exempt from overtime, for whom employers may not track hours worked. The applicable DOL regulation, 29 C.F.R. § 825.110(c)(3), places this burden of proof on the employer for all employees, “including for employees who are exempt from FLSA’s requirement that a record be kept of their hours worked…”