Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Monday, October 22, 2012

Employee on Unpaid FMLA Leave Does Not Accrure Seniority

Appeal of DONNA SCARPINATI DE OLIVEIRA, No. 16,411 (Commissioner of Education Sept. 18, 2012). As the Commissioner explains:

Petitioner was granted an unpaid leave of absence effective September 1, 2009 through October 13, 2009, totaling 23 days of unpaid leave.  It is well settled that days spent on unpaid leave of absence may not be included in determining seniority (Appeal of Goldman, 43 Ed Dept Rep. 338, Decision No. 15,011; Matter of Halayko, 23 id. 384, Decision No. 11,254).  Petitioner argues that, because she took unpaid leave pursuant to the FMLA, such days must still be included in calculating her seniority.[2] However, 29 C.F.R. §825.215(d)(2) specifically provides that an employee “may, but is not entitled to, accrue any additional benefits or seniority during unpaid FMLA leave” (emphasis added).  Moreover, a guidance letter from the U.S. Department of Labor states, in pertinent part, “The FMLA does not entitle an employee to the accrual of any seniority (or employment benefits) during any period of FMLA leave[.]”  As an example, the letter further states, “[i]f the employer’s established leave policies do not permit the accrual of seniority during an unpaid leave of absence, this same policy would apply to unpaid leave covered by the FMLA leave”  (U.S. Department of Labor; Employment Standards Administration; Guidance Letter; FMLA – 109; September 8, 2000)  (emphasis added).  Petitioner, thus, has not demonstrated any entitlement to include the days she was on unpaid leave in the calculation of her seniority.

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