Tag Archives: tenure

Thorny FMLA Eligibility Issue: Counting Hours Worked To Meet the 1250 Hour Threshold

Donnelly v. Greenburgh Central School District, a recent federal court decision, addresses one of the core eligibility issues under the Federal Family & Medical Leave Act (FMLA).

The court focused on what hours must be counted toward the 1,250 hours of actual work when determining whether an employee is eligible for leave under the FMLA leave. In particular, the court focused on counting work from home or away from the workplace. The former high school teacher alleged that he was denied tenure in retaliation for taking FMLA leave. The district defended by arguing that Donnelly was not eligible for FMLA leave because he had not worked at least 1,250 hours during the previous 12 months.

The district relied on the certificated collective bargaining agreement to calculate the number of hours Donnelly actually worked. The collective bargaining agreement provided that the maximum work day for a teacher was 7.5 hours, which is one hour longer than the school day. The district multiplied this number by the number of days Donnelly worked during the previous year and found that he worked 1,247 hours (only three hours shy of qualifying for FMLA leave).

Donnelly argued that he typically worked 1.5 hours before and after class and that additional time should be included in calculating his FMLA eligibility. A judge disagreed and relied upon the maximum work day in the collective bargaining agreement in finding that Donnelly was not eligible for FMLA leave because he could not produce reliable evidence showing that he actually worked 1.5 hours each day before and after class performing work that was integral to his teaching job. Accordingly, the judge dismissed his FMLA retaliation claim.

The Federal Appeals Court reversed, finding that a jury should decide whether Donnelly worked enough hours to qualify for FMLA leave.

The Court first noted that under the FMLA regulations, because the school district did not maintain accurate records of the actual hours Donnelly worked, the district had the burden of proving that Donnelly did not work 1,250 hours and was, therefore, ineligible for FMLA leave. The Court further held that the collective bargaining agreement did not govern how many hours Donnelly worked for purposes of FMLA eligibility. The Court emphasized that all of the hours Donnelly worked performing activities that were an integral and indispensable part of his job as a teacher should be counted, regardless of the work day provision in the collective bargaining agreement.

The most important part of the Court's ruling deals with counting work performed from home. The Court held that, especially in the case of teachers who grade papers and plan lessons from home during “off duty” hours, there is no preclusion from counting that time when calculating FMLA eligibility, as long as the work is an integral and indispensable part of the job.

What This Means for Employers

  1. If an employer does not have an accurate and reliable way of accounting for an employee's hours, the employer will bear the burden on summary judgment of proving that the employee did not meet the eligibility requirement, which is a very difficult burden. This will be especially difficult when dealing with salaried employees and those exempt from overtime, because under separate wage and hour laws you cannot require them to record their hours or clock in and out.
  2. Work from home may be counted in determining FMLA eligibility. We live in an era when employers expect employees to be accessible at all times because of cell phones and smart phones. If you expect an employee to respond to email or calls after hours, you may be required to count those hours in determining FMLA eligibility. Furthermore, even if an employer has no way of accounting for work from home, that work may nonetheless be counted in determining FMLA eligibility.

Tenured Teacher Prevails On Claim that District Cannot Unilaterally Dismiss Charges

On June 25, 2012, in Boliou v. Stockton Unified School District, an appeals court ruled that once a school district schedules a termination hearing against a tenured teacher, it cannot unilaterally rescind the dismissal charges and thereby avoid paying the teacher’s attorneys’ fees and costs. The district is required to conclude the proceedings only as provided by statute, with the Commission on Professional Competence rendering a decision.

Stockton Unified filed an accusation against tenured teacher Mr. Boliou, specifying conduct it claimed merited his dismissal. He denied the conduct and demanded a hearing, which the district scheduled. After 18 months of vigorous litigation and some unfavorable rulings, the district moved to dismiss the charges. Boliou objected and demanded a ruling from the Commission that he should not be dismissed from his employment. This would entitle him to reasonable attorney fees and costs under Education Code §44944(e)(2). The Commission granted the district’s motion to dismiss the charges.

Boliou then went to court, and a judge granted his Petition for Writ of Administrative Mandamus, ordering the Commission to modify its dismissal order to include an express determination that Boliou should not be dismissed. The court also ordered the district to pay Boliou’s reasonable attorneys’ fees and costs.

The district appealed, and the appellate court upheld the writ. Even though no evidence was taken, the Commission was bound to conduct the hearing, once scheduled. Given the district’s dismissal of all charges against Boliou, the court found the only appropriate disposition was a finding that Boliou “should not be dismissed or suspended.” Once the Commission entered that finding, Boliou was also entitled to his reasonable attorney fees and costs.

California Education Code §44941, §44943, and §44944(a) provide that if a teacher demands a hearing on disciplinary charges and the governing board of the school district exercises its option to schedule a hearing instead of rescinding the charges, “the hearing shall be commenced …” Further, pursuant to §44944(b) and (c)(1), the hearing must be conducted, and “the commission shall prepare a written decision containing … a disposition that shall be, solely, one of the following: (A) That the employee should be dismissed; (B) That the employee should be suspended for a specific period of time without pay; (C) That the employee should not be dismissed or suspended.”

Accordingly, a district’s sole opportunity to rescind the charges is when it notifies the teacher of the charges and s/he demands a hearing. The Education Code’s comprehensive statutory scheme does not permit the district to stop the proceeding simply by dismissing the charges. The court concluded: “Regardless of whether the hearing proceeds with or without taking evidence on the merits of the charges, the statutory scheme makes clear what the commission is required to do.”