When computing the number of hours an employee works, the calculation is not restricted to the hours identified in a collective-bargaining agreement. That was the conclusion reached by the Second Circuit in Donnelly v. Greenburgh Central School District No. 7. In that case, the Plaintiff was a teacher denied tenure allegedly because of his absences from school caused by a surgical procedure. Under a collective-bargaining agreement between the teacher’s union and the school district, a teacher’s regular working day was not to exceed seven hours and 15 minutes. Since the Plaintiff had worked 172 days, he had only worked 1,247 hours—three hours shy of the Family Medical Leave Act’s 1,250-hour requirement.
But the Second Circuit concluded that when a Plaintiff alleges that a compensation agreement does not accurately reflect all of the hours that he or she worked, then the employer has the burden of showing that the employee failed to work the requisite hours. The employer must prove either that the employee could not have worked the alleged amount of hours, or that the alleged hours worked are not compensable. Based on the evidence, the Plaintiff will likely be able to prove that he worked at least 1,250 hours, and may go on to prove that he was retaliated against for exercising his rights under the FMLA. If you need more information, contact Lance Gould at 800-898-2034 or by email at Lance.Gould@beasleyallen.com.
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