Family Leave Act can affect teacher's seniority

Newsday (MCT) - Q. I work for a school district, and I pay into the teachers' retirement system. I became ill and was out for 70 days under the Family and Medical Leave Act. Before I returned to work, I received a letter stating that the retirement system administrators were changing my date of hire because I didn't pay into the retirement system for the time I was out. Can they do that?

A. Your question brings up a little-known wrinkle in the 15-year-old FMLA, which is one of the most complex federal labor laws.

The FMLA grants qualified employees up to 12 weeks of unpaid leave to tend to family or personal medical emergencies. And it preserves employees' job status and health benefits while they are on leave.

But the law doesn't mandate that employees be allowed to accrue any extra benefits while they are on leave. And that goes to the heart of your question.

Irv Miljoner, who heads the Long Island, N.Y., office of the U.S. Labor Department, sums it up:

"You can't be adversely affected for having taken FMLA leave," he said. "Your benefits cannot be adversely affected; you have to be restored to your job (with) the same terms and conditions as if you hadn't been on leave."

"But," he said, "the one thing that can be affected is your tenure, your length of service. ... You earn seniority by virtue (of being on the job)."

While you were on leave, the retirement system didn't have to continue to allow you to accrue seniority. If administrators gave you the credit, unexpectedly, but now want to reconcile accounts to bring your status up to date, that's legal.

"The employer is allowed to adjust your service time," Miljoner said.

Here is what Section 825.215 (d)(2) of the Code of Federal Regulations says on the subject:

"An employee may, but is not entitled to, accrue any additional benefits or seniority during unpaid FMLA leave. Benefits accrued at the time (the) leave began, however, (e.g. paid vacation sick or personal leave to the extent not substituted for FMLA leave) must be available to an employee upon return from leave."

The citation brings up two other wrinkles in the FMLA. When employees take the leave, their companies can require them to use up vacation, sick or other paid leave concurrently. The employees benefit because part of the unpaid FMLA winds up being paid. But the downside is that they may have no vacation or other personal time left when they return to work.

Q. I work for a not-for-profit health group, without a union. I work seven hours a day except for Thursdays, when I put in a 10-hour day. All sick, personal and vacation days are based on hours we have worked. Because I normally work extra hours on Thursday, I am paid for 10 hours when I take a vacation or sick day that falls on a Thursday. But if a holiday falls on a Thursday, such as Thanksgiving, I get paid for just seven hours, which leaves my paycheck short. Is it legal for the company to do this?

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A. It's legal because you didn't actually work that time. Hourly employees have to be paid only for the hours they actually worked. How the company, especially a non-union one, treats hours you don't work is up to the company.

If your office has a handbook, check the wording on payments for holidays and put your mind at ease. Until that time, here is something that might put things into perspective: Companies don't have to pay benefits. And some companies don't pay for holidays at all, even when their workers don't have a choice about working or not. It can always be worse.

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(Carrie Mason-Draffen is the author of "151 Quick Ideas to Deal With Difficult People." She welcomes questions for the "Help Wanted" column. Contact her at 631-843-2450 or carrie.draffen@newsday.com.)

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