A recent New York appeals court decision should help remind HR of the price for failing to do so.
In the case of Donnelly v. Greenburgh Central School District No. 7, high school teacher Edward Donnelly claimed the district denied him tenure after he took time off under the Family and Medical Leave Act to undergo gallbladder surgery. The district, however, argued Donnelly was not eligible for FMLA leave because he had only worked 1,247 hours the previous year, leaving him just shy of the 1,250 hours required to qualify.
Both parties agreed that Donnelly worked seven hours and 15 minutes each day for 172 days during the 12-month period preceding his leave—for a total of 1,247—per his union’s collective bargaining agreement. The same agreement, however, also recognizes that “teachers have responsibilities which they readily and willingly perform that extend beyond the pupil’s regular school day.”
Indeed, Donnelly contended he regularly worked more than one hour before and after class. His assertion was supported by a June 2006 performance evaluation stating that Donnelly often arrived early to work, and frequently “stay[ed] late into the afternoon working with his kids to ensure their success.”
That performance review detailing Donnelly’s extra hours on the job was a factor in the Second Circuit Court of Appeals decision to overturn a lower court’s ruling. The appeals court also found that the school district hadn’t kept an adequate, accurate record of the hours Donnelly had worked, and noted that the collective bargaining agreement in place wasn’t the only means of calculating Donnelly’s hours under the FMLA.
The Donnelly ruling presents a “cautionary tale” for HR professionals, says Stephen Sheinfeld, partner and head of Winston & Strawn’s labor and employment relations practice group in New York.
[This case] reminds employers of the need for accurate recordkeeping and potential liability arising from work performed outside of the ‘regular’ workday,” says Sheinfeld. “Particularly, given the prevalence of remote-access work capabilities, employers need to be aware that work conducted by non-exempt employees outside of the regular workday may be compensable under the Fair Labor Standards Act, whether conducted on a PDA, home computer or otherwise.”
Such work, when performed by exempt employees, may not be required to be recorded for the FLSA, but may be counted as hours worked for purposes of the FMLA, he adds.
“Thus, the lesson for HR is to maintain policies, corresponding records and policing mechanisms so that there is no confusion as to hours worked.”