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Employment Law Alert: Sixth Circuit Clarifies "Hours Worked" For Purposes Of FMLA Leave Eligibility

On May 2, 2007, the Sixth Circuit Court of Appeals issued a decision clarifying the "hours worked" requirement for FMLA leave eligibility. At issue was whether a hospital that paid weekend nurses for more hours than they actually worked (as an incentive for weekend work) was required to count these extra hours when determining a nurse's eligibility for FMLA leave.

In an effort to recruit nurses for weekend work, Dunlap Memorial Hospital ("DMH") instituted an incentive program whereby nurses who worked 12-hour shifts on both Saturday and Sunday in a two-week period would be paid for 68 hours instead of the 48 they actually spent on duty. One of these weekend nurses, Carla Mutchler, claimed that DMH violated the FMLA by not counting these "incentive" hours in determining her eligibility for FMLA leave. The Court rejected this argument, citing the applicable regulations under the FMLA and the FLSA which state that "hours worked" are hours that "the employee is required to give his employer." Because Mutchler and the other weekend nurses were paid the extra 20 hours as an incentive for accepting weekend work, those 20 hours were not hours that she was required to give DMH, and were thus not required to be counted in determining her eligibility for FMLA leave.

Bottom Line

This case -- while perhaps not surprising in its outcome -- is nevertheless a good outcome for employers who provide various forms of incentive pay to employees.

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