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Denied FMLA coverage due to lack of hours Colorado

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  • Denied FMLA coverage due to lack of hours Colorado

    Does an employee have any recourse when denied FMLA coverage following accident (unexpected/required surgery & hospitalization and unable to physically perform job duties until fracture site heals)?

    Worked for organization 4 years, but transitioned from "PRN" to part-time in September.

    Calculations based on employer's records indicate employee lacks approximately 80 hours to achieve 1,250.

    As prn staff, I had a two weeks during the year where I took vacation (unpaid as PRN of course) but my employer tells me they cannot take that into account.

    1) Do most organizations hold to the minimum of meeting 1,250 hours and are they required to do so by law.

    2) Since denied FMLA am I at risk for losing my job?

    3) Is seeking formal legal counsel advised at this point or would it be a waste of energy?

    Thanks.

  • #2
    It is hours worked by law (paid or unpaid time off excluded) and 80 hours would be too far from the requirement. I have seen companies "fudge" it for an hour or two (whether that is the legal thing to do or not, I'm not going to comment), but not for 80. If FMLA does not apply, your job is not protected under the Act. I don't know if Colorado has a similar law that would provide job protection, but there wouldn't be any under the FMLA.
    http://www.dol.gov/esa/regs/compliance/whd/1421.htm#2b

    Now that doesn't mean the employer will discharge you, it just means that they may. I don't see any violation of law based on the little you have posted, so I'm not seeing anything to consult an attorney about.

    cbg, Betty3, am I missing anything?
    Last edited by Pattymd; 02-19-2008, 10:57 AM.
    I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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    • #3
      Colorado does not have any state law that would be applicable in this situation.

      FMLA eligibility is set by Federal law. An employer MUST have 50 or more employees within 75 miles of the employee's location; the employee MUST have worked a minimum of 12 months AND 1,250 hours, or legally any time offered cannot be considered FMLA and FMLA protections would not apply.

      Patty's pretty much covered it as far as I can see.
      The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

      Comment


      • #4
        I agree. Betty3
        Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

        Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

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        • #5
          You may have a case to fight this.

          According to your post, you said you worked for the company for over 4 years, but recently changed to part time.

          You do not have to be continuously employeed by the company. If you have worked for more then 12 months and 1250 hours, you may have something to fight about.

          Does anyone else have an opinion on this?

          Comment


          • #6
            Yes, I do have an opinion, as a matter of fact. The law says 1,250 hours in the last 12 months preceding the leave, not 1,250 hours in total, spanning multiple years.

            To be eligible for FMLA leave, an employee must work for a covered employer and....
            have worked at least 1,250 hours during the 12 months prior to the start of the FMLA leave, and....

            This is included in the same link I provided in my earlier response.
            I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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            • #7
              I was just reading about a case where that was overruled. The case of O'Connor V. Busch's, Inc.

              What do you think? I always believed in the 1250 prior, but this has me second guessing it.

              Comment


              • #8
                Originally posted by Johnny C View Post
                I was just reading about a case where that was overruled. The case of O'Connor V. Busch's, Inc.

                What do you think? I always believed in the 1250 prior, but this has me second guessing it.
                The law seems pretty clear to me, but.............

                Can you post a link to the case?
                I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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                • #9
                  This is what is written...

                  O'Connor v. Busch's, Inc., U.S. Dist. Crt., E.D. mich., No. 07-11090, 06/26/07

                  In looking into it further, it seems like this person may have met the hours but not the months. Sorry about the confusion.

                  Comment


                  • #10
                    Aha. Had me worried there for a minute.
                    I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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                    • #11
                      http://www.ceridian.com/www/content/...connorcase.pdf

                      It seems to address whether the 12 months must be continuous, not whether the employee must have worked 1250 hours.
                      I am not able to respond to private messages. Thanks!

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                      • #12
                        Case law has determined that the 12 months need not be continuous. However, the 1,250 hours still has to have been worked in the 12 months immediately preceding the leave.

                        No 1,250 hours = no FMLA.
                        The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

                        Comment

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