On August 10, 2012, the US Court of Appeals for the Second Circuit issued an opinion in Donnelly v. Greenburgh Central School District No. 7, reversing the decision of a district court granting summary judgment to the defendants in a claim by a high school teacher alleging retaliation for taking FMLA leave. The key issue was whether, for purposes of calculating eligibility for FMLA leave, the teacher's annual work hours should include time spent outside of the standard workday specified in a collective bargaining agreement.

In 2004, the Greenburgh Central School District No. 7 (the District) hired Edward Donnelly as a high school English teacher under a three-year probationary contract with the possibility of tenure at its conclusion. In the fall of Donnelly's third year, he took several days of leave for surgery on his gallbladder. Donnelly did not identify his requested leave for surgery as FMLA leave.

In early 2007, the District denied Donnelly tenure. Evaluations relied on by the District in reaching this decision specifically criticized Donnelly's absences. Although Donnelly disagreed with the evaluations, he resigned his position instead of being terminated.

Donnelly sued the District, alleging that it had denied him tenure in retaliation for taking FMLA leave. The District moved for summary judgment, arguing, among other things, that Donnelly had not worked the hours required to be eligible for FMLA leave.

A magistrate judge assigned to the case found that Donnelly was not eligible for FMLA leave as a matter of law, noting that, under a collective bargaining agreement that covered Donnelly and other teachers, working hours were identified as 7 hours and 15 minutes. In light of this figure, and based on the number of days Donnelly had worked in the 12 months before taking leave, the judge found that Donnelly's total hours worked were only 1,247, short of the 1,250 hours needed to qualify for FMLA leave. The judge also found that Donnelly had not provided any evidence of what activities he accomplished after the designated work day or how these activities were necessary.

The district court did not address the FMLA eligibility argument, holding that Donnelly had failed to demonstrate his qualification for tenure, and granted the District's motion for summary judgment.

On appeal, the Second Circuit reversed the district court's decision, finding, among other things, that the time Donnelly spent working beyond the hours specified in the CBA could be counted as working hours for purposes of calculating FMLA eligibility. The court also found that evidence existed to show that Donnelly had in fact spent additional time performing work that could be counted toward his FMLA eligibility.

The court began by noting that, to be eligible for FMLA leave, an employee must work at least 1,250 hours during the 12 months before taking leave. The burden is on the employer to prove FMLA ineligibility.

In concluding that Donnelly raised a question of fact as to whether he had worked at least 1,250 hours, the court found that the work hours specified in the CBA are not determinative for purposes of FMLA eligibility. FMLA regulations specify that eligibility is calculated by looking at the actual number of hours worked, rather than those set forth in an agreement. Where an employee alleges that a CBA does not reflect all the hours he has worked, the court held, the burden is on the employer to show that the employee has not worked the required hours.

The court also rejected the District's arguments that, even if Donnelly worked more time than required by the CBA, those hours were not compensable under the FLSA. The court noted that, under the Portal-to-Portal Act of 1947, whether hours "count" under both the FLSA and the FMLA is determined by looking at whether those hours are a devoted to activities that are an "integral and indispensable part of the principal activity of the employment."

Although the court acknowledged that Donnelly had provided few specifics on the nature of the additional work he performed, the court found there was sufficient evidence on this point to bring his case before a jury, including:

The court rejected the District's argument that since Donnelly was free to leave after seven and a quarter hours, hours worked beyond that point are not compensable. The court noted that a reasonable jury could find that even if a teacher is permitted to leave at a certain time, the demands of a job may require further preparation.

The court also reversed the District court's entry of summary judgment against Donnelly on his tenure and FMLA retaliation claims.

The court's decision highlights for employers the importance of maintaining adequate records of employee working hours and assignments. Hours spent beyond normal working time, either at the workplace or at home, may be counted toward FMLA eligibility. It is not sufficient for an employer to rely on a written agreement alone when calculating hours worked toward the FMLA coverage minimum. An employer must be able to present sufficient evidence to rebut an employee's claim that he worked more hours than specified under an employment agreement or CBA.