Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Thursday, February 5, 2009

Union Release Time Counts Towards FMLA Min. Hour Requirements

Maples v. Illinois Bell, ___F.Supp. 2d ___, 2009 U.S. Dist. Lexis 3156 (N.D. Ill. Jan. 14, 2009), is an extremely important FMLA and labor relations case. Many unions bargain for release time for their stewards an officers. Query, does that time count towards the 1250 min. hour coverage requirement under the FMLA? Yes, holds this court notwithstanding the fact that the union, yes the union and not the employer, pays for this release time.
This decision is complicated, but well written. Basically, the court looked to the FLSA for guidance and largely relied on 29 CFR 785.42 which is a DOL regulation which provides that time spent adjusting grievances is considered hours worked.    

Mitchell H. Rubinstein

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I haven't read this decision yet, but it reminds me of a Board case I had where the union tried to argue that a past practice of paying employees for time spent adjusting grievances meant that the employer should be deemed to have a broader past practice that would cover pay for time spent in arbitrations. This was a loser in front of both the ALJ and the Board, on the theory that the employer might be quite willing to allow adjustment of grievances on company time with no intention of permitting employees to engage in other union business while on the clock. Ironically, attending a union convention in Vegas was our "absurd" example to show how inapt the union's suggested analogy was. I understend that counting release hours towards the FMLA 1250 minimum is not as burdensome on the employer as providing pay, but the the distinction between time spent on grievances and release time raises a valid point in my view. It will be interesting to see if the 7th weighs in, although I would not expect this issue to recur too often (you would need a steward who actually worked more than 1210 but fewer than 1250 hours for it to matter).

Posted by: King Tower | Feb 6, 2009 10:59:41 AM

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