Calculating and counting an employee's 12 weeks of Family and Medical Leave Act (FMLA) leave is usually a pretty clear-cut matter. However, the math can get complicated when the employee regularly works overtime and has to miss some of the extra shifts because of intermittent FMLA leave.

Fortunately, a recent decision from the U.S. 8th Circuit Court of Appeals—which covers Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota—provides a helpful road map for navigating the issue of calculating FMLA leave for employees regularly working overtime.

Employee exhausts FMLA leave and gets fired

The case involved Bridgestone Americas Tire Operations, whose continuous production regularly requires a great deal of overtime. Employees are allowed to express interest in working an overtime shift, and if they are selected for the shift, they must report to work or incur an "incident of absence" under the company's attendance policy. If an employee misses an overtime shift because of FMLA leave, no absence is incurred, but the hours are deducted from his FMLA leave balance.

Lucas Hernandez was approved for intermittent FMLA leave to care for his son, who suffers from asthma. In a 9-month span in 2011 and 2012, Hernandez missed work 54 times, including six overtime shifts. Most (but not all) of the absences were attributed to FMLA leave.

On July 10, 2012, Bridgestone informed Hernandez that he had exhausted his 12-week FMLA allotment. Therefore, when he missed overtime shifts on July 11 and 12, the absences were counted against him, even though they would have counted as FMLA leave had he not exhausted his allotment. As a result, he was issued steps two and three of the company's progressive discipline system.

When Hernandez failed to report for his regular shifts from July 13 to July 15—again because of his son's illness—he progressed to the fourth disciplinary step, termination. He then sued Bridgestone under various legal theories, including interference with his FMLA rights.

How voluntary overtime becomes mandatory

The trial court ruled in favor of Hernandez on his FMLA claim, concluding that since employees are allowed to choose whether to work overtime, his extra shifts were voluntary. According to a U.S. Department of Labor (DOL) regulation, voluntary overtime hours missed because of FMLA leave may not be deducted from an employee's FMLA leave balance. Therefore, Hernandez should still have had FMLA leave available at the time he was terminated for absenteeism.

Bridgestone appealed the judgment to the 8th Circuit, which flat-out disagreed with the trial court on the voluntary nature of the overtime. The court noted that once an employee is selected to work an overtime shift, he is required to do so or face disciplinary action. That requirement turns a voluntary decision into a mandatory obligation. Therefore, it was appropriate for Bridgestone to deduct Hernandez's missed overtime hours from his FMLA entitlement.

Employers must predict the future—here's how

So the FMLA deductions were proper and Hernandez's termination stands, right? Not exactly. Even though the missed mandatory overtime hours could be deducted from Hernandez's FMLA balance, the appeals court declared that he had not been properly credited with enough FMLA leave in the first place because the expected overtime was not taken into account.

The court explained that the DOL "intended for hours missed for FMLA-qualifying reasons to be deducted from the employee's FMLA-leave entitlement only if those hours were included in the employee's leave allotment." In other words, if the overtime was considered part of Hernandez's regular schedule for purposes of deducting FMLA leave, it also had to be considered when determining how much FMLA leave he would be granted in the first place.

The company argued that overtime varied and it was never able to predict with precision how much overtime Hernandez would work. Therefore, it was impossible to determine how much FMLA leave he should receive. The court disagreed, noting that the DOL had already provided for that situation in a regulation stating:

If an employee's schedule varies from week to week to such an extent that an employer is unable to determine with any certainty how many hours the employee would otherwise have worked (but for the taking of FMLA leave), a weekly average of the hours scheduled over the 12 months prior to the beginning of the leave period (including any hours for which the employee took leave of any type) would be used for calculating the employee's leave entitlement.

As a result, Hernandez should have been credited with more FMLA leave than he actually received because his regular schedule included the anticipated overtime hours. Had that been done, he would still have had some FMLA leave left, and he would not have been subject to termination for his final absences.

Thus, the court affirmed the judgment in Hernandez's favor for reasons that were very different from what might have been expected based on the lower court's ruling. Hernandez v. Bridgestone Americas Tire Operations LLC (8th Circuit, May 13, 2016).

Bottom line

This decision makes very clear that mandatory overtime needs to be counted when determining how much FMLA leave an employee can take in a 12-month period. After all, if an employee regularly works an extra 10 percent of an ordinary week, he would be entitled to an additional 10 percent of FMLA leave, too. Counting hours ahead of time is far better than counting back pay after the fact.

Dennis J. Merley is an editor of Minnesota Employment Law Letter.