Originally voluntary overtime shifts can be implied to be mandatory by an employer's custom or procedure.

Where overtime is considered mandatory, an employer may deduct missed shifts from an employee's allotted intermittent FMLA leave allotment.

However, an employer must include mandatory overtime hours when calculating an employee's total FMLA leave allotment.

Improperly calculating an employee's FMLA leave allotment interferes with the employee's rights under the FMLA.

( (8th Cir. Aug. 4, 2016).)

After five incidents of absence in a nine-month period, the employee is required to attend counseling.

If an additional incident of absence occurs after counseling and within nine months of the previous incident, the employee is issued a written warning (Step 1).

If an additional incident of absence occurs after the written warning and within nine months of the previous incident, the employee receives a written reprimand (Step 2).

If an additional incident of absence occurs after the written reprimand and within nine months of the previous incident, the employee receives a final written warning (Step 3).

If an additional incident of absence occurs after the final written warning and within nine months of the previous incident, the employee is terminated (Step 4).

Tire builders may indicate their interest in and availability for overtime on a sign-up sheet.

BATO selects employees from the list based on seniority and the number of overtime hours an employee has worked in that year.

Selected employees are required to be present and work the twelve-hour shift unless allowed to leave early due to diminished production.

An employee who fails to report for an overtime shift is subject to discipline under the attendance program unless the absence is excused.

If the employee misses his overtime shift for an FMLA-qualifying reason, the twelve-hour overtime shift is deducted from the employee's FMLA entitlement.

Six were overtime shifts.

Forty-two were excused under the attendance program as FMLA leave or accident and sickness leave.

Six were unexcused, which resulted in counseling under BATO's attendance program.

One further was unexcused resulting in progression to Step 1 (a written warning).

Ruled in favor of BATO on Hernandez's FMLA discrimination, retaliation, and harassment claims.

Ruled in favor of Hernandez on his FMLA interference claim.

Held that:

Originally voluntary overtime shifts can be implied to be mandatory by an employer's custom or procedure.

Where overtime is considered mandatory, an employer may deduct missed shifts from an employee's allotted intermittent FMLA-leave allotment.

However, an employer must include mandatory overtime hours when calculating an employee's total FMLA-leave allotment.

Improperly calculating an employee's FMLA-leave allotment interferes with the employee's rights under the FMLA.

To succeed on an FMLA interference claim, Hernandez must prove that BATO denied Hernandez FMLA benefits to which he was entitled (Beatty v. Custom–Pak, Inc., 624 F.Supp.2d 1045, 1052 (S.D. Iowa 2009).)

Under 29 C.F.R. § 825.205(c):

The issue to determine is the definition of "voluntary."

The district court misapplied 29 C.F.R. § 825.205(c), and therefore erred in holding that Hernandez's overtime was voluntary.

After BATO selected employees to work overtime, employees are required to work the shift. Failing to report for an overtime shift, just like a regular shift, counts as absence under BATO's attendance policy. Mann v. Frank suggests that this particular overtime selection process used by BATO can make originally voluntary overtime shifts mandatory (7 F.3d 1365 (8th Cir. 1993)).

Under Mays v. American Electric Power, certain overtime hours were only mandatory once the employee was selected. The court held that the employer "correctly charged missed overtime hours to Plaintiff's FMLA leave" because without an FMLA-qualifying reason for the absence, he would have been expected to work. Although the overtime selection process in Mays differed from that at BATO, in both situations selection for overtime was a prerequisite to the employee being required to work the shift. ( (S.D. Ohio 2010).)

Both Mann and Mays suggest that even if overtime is not consistent or included in the employment contract, mandatory overtime can be implied by custom or procedure.

Like the district court, the Eighth Circuit agrees with the definition of voluntary found in the DOL opinion letter relied on by the district court (Opinion Letter Family Medical Leave Act, FMLA-107, , at *1 (July 19, 1999) (Opinion Letter)). However, the Eighth Circuit departs from the district court in applying the definition to the facts of this case, holding that, in this case, if Hernandez signed up and was selected for overtime, he was then required to work unless he had an excuse. The selected overtime shift became mandatory and was treated as a part of Hernandez's "usual or normal workweek."

The DOL Final Rule states that "the appropriate focus is whether the employee would have been required to work the overtime hours but for the taking of FMLA leave...." (The Family Medical Leave Act of 1993, 73 Fed. Reg. 67934-01, 67979 (Nov. 17, 2008) (Final Rule)). If the employee would have been required to work, the overtime is mandatory. Had Hernandez not taken FMLA leave, he would have either been required to work the overtime he signed up for or been disciplined. At BATO, failure to work an assigned shift is considered an absence on the employee's record. Therefore, according to the Final Rule, Hernandez's overtime was mandatory.

BATO was therefore correct to treat Hernandez's overtime as part of his usual or normal workweek and deduct missed shifts from his FMLA leave.

As Hernandez's overtime was "mandatory", his overtime hours should have been included when calculating his total FMLA-leave allotment. (Opinion Letter, , at *1). BATO's failure to include the overtime hours in the calculation "denied [Hernandez] FMLA benefits to which he was entitled" (Beatty, 624 F.Supp.2d 1045, at 1052).

The DOL intended for hours missed for FMLA-qualifying reasons to be deducted from the employee's FMLA-leave entitlement only if those hours were included in the employee's leave allotment (Final Rule, 73 Fed. Reg. 67934-01, at 67979).

Mandatory overtime, or overtime that is a part of the employee's normal workweek, is to be included in the calculation of FMLA leave "even where the employer may not know in advance of the workweek when overtime will be scheduled or how much overtime will be worked that week" (Opinion Letter, , at *1).

BATO's overtime selection process made the overtime mandatory. Therefore, BATO interfered with Hernandez's rights under the FMLA by improperly calculating his FMLA-leave entitlement.

As Hernandez's overtime hours varied from week to week, BATO should have calculated his FMLA leave under Section 825.205(b)(3). Instead, BATO did not consider Hernandez's overtime hours at all.

By scheduling mandatory overtime hours that were not included in Hernandez's FMLA-leave allotment and yet were deducted from his FMLA entitlement when he missed an overtime shift, BATO denied the FMLA benefits to which Hernandez was entitled.