Staunch v. Continental Airlines, Inc., —F.3d—, 2008 WL 60193 (CA 6(Ohio)), 13 Wage & Hour Cas.2d (BNA) 175.
Airline stewardess sued airline after being terminated alleging that employer interfered with exercise of her FMLA rights. Appeals court affirmed district court’s dismissal of her claim finding that she was not an eligible employee under FMLA as she had not worked the requisite number of hours.
Employee must work 1,250 hours in the twelve months preceding her request for intermittent leave. Courts look to principles for calculating hours of service established under FLSA. Determining factor is the number of hours an employee has worked for the employer. Any accurate accounting of actual hours worked under FLSA’s principles may be used. If employer does not maintain an accurate record of hours worked, the employer has burden of showing that the employee has not worked the requisite hours.
In this case, the employer proffered an affidavit from HR Manager with an attached chart of employee’s total hours worked. Employee attempted to counter with an affidavit and an attached undated list of tasks and hours worked based upon her recollection.
Court found that employee’s undated list did not set forth specific facts showing a genuine issue for trial and then pointed to deficiencies within the list that affected employee’s credibility (despite credibility not being a factor in summary judgment motions).
It appears that in the end, the party with the appealing list of hours worked may ultimately win. Employees and employers must be very specific when it comes to matters of hours worked to determine FMLA eligibility.