Uncompensated time may put hourly workers over FMLA threshold

Wisconsin’s unemployment rate is lower than the national rate, but jobs are still hard to come by. It is all too common in a market like this for workers to do whatever they have to to hold onto that job, even without health care or disability benefits. In some cases, there’s an unspoken promise of full-time employment: Prove yourself a valuable addition to the team, and you’ll be at the top of the list when a full-time position opens up.

Contractors and part-time employees know all too well that they aren’t eligible under the company’s vacation or sick time policies or even the annual holiday turkey giveaway. What they may not realize, though, is that they may still be covered by the state or federal Family and Medical Leave Act — especially if they are putting in that extra effort off the clock.

The Wisconsin FMLA and the federal FMLA differ in some significant ways. They share two important provisions, though: They ensure that employers continue the employee’s health insurance during the leave, and they protect the employee’s right to be reinstated after the leave.

Under the Wisconsin law — the W-FMLA — employees must work 1,000 hours for 52 consecutive weeks before he or she qualifies. The employer can be either public or private, but there must be at least 50 permanent employees.

Unlike the federal law, the state law provides different lengths of time for different life events. For a birth or adoption, the employee is entitled to six weeks of leave; for the health event of a family member or for the employee, the leave is limited to two weeks. An employee can take a total of eight weeks per year.

The federal law provides 12 weeks of leave for these events, but the employee must have worked 1,250 hours in the 52 weeks immediately preceding the leave. The employer must have at least 50 permanent employees at any number of locations, as long as the locations are within 75 miles of each other.

More and more often, lately, employees are asking courts to consider all of the hours they work — compensated and uncompensated — when deciding if the workers are protected by the FMLA. This gets a little tricky for employers.

We’ll continue this in our next post.

Source: Business Management Daily, “The two-headed monster waiting to trip you up,” Dec. 11, 2011

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