“If I work during FMLA leave, without prior approval, do I get paid?”

Question: Alan, I have not been classified as a “key employee” by my employer, but while on FMLA leave of absence for Maternity Leave I worked over 200 hours. I did so because the nature of my job requires timely reporting and other duties that I simply had to do in order for the company to not take a hit.

My boss did not specifically ask me to work during that time; obviously, she couldn’t, as I was on FMLA. But she was aware of my working because of an exchange of numerous emails.

She has never liked me, but I have never given her a reason to write me up. She is now using this opportunity to get HR against me. She asked me to submit my hours, informed HR that she was unaware I was working so much, and is using “lack of communication” as something to write me up for, since she was unaware of the hours.

My questions are: (1) Are there laws pertaining to working during FMLA? (2) Though I have documentation to prove the hours worked, are they all lost because I was on FMLA? (3) I was hoping that, in light of the many hours I worked during FMLA, I would not have to use up all of my sick time and vacation to cover the 9 weeks I took off; should I fight for this?

I’m feeling bullied, disrespected and harassed. What are my legal rights, if any. Thanks for your help.

Lincoln, Nebraska

Answer: Dear LC:       

As you may know, for almost 30 years I’ve been advocating for employees. As you probably don’t know, for most of those 30 years, I’ve also been an employer. I think I can see many issues from “both sides.” On your situation, I think there is something of a communications problem here:     

1. If you take a FMLA (Family and Medical Leave Act) leave of absence, which is unpaid, your employer can reasonably presume you (a) are on a leave of absence, that is, not working, and (b) don’t expect to get paid for that time period. The very idea of saying to an employer “I have a legal right to take an unpaid leave of absence, and I am going to exercise that right,” means you are (a) going to be on leave, and (b) you think the time is unpaid. From what you write, you never asked or told your supervisor otherwise. While she may have seen many emails, that doesn’t necessarily mean she was, in her mind, calculating the degree of your work. As you know, we all have many things on our minds.

2. It seems to me your dispute is not about your FMLA rights, but about what you were “written up” for: poor communications. There are many parts of the FMLA law, many regulations about them, and many cases regarding FMLA rights. I don’t think any of those laws, regulations or cases pertain to the issue here: one of communication. Whether your boss likes you or not, (a) your putting in writing that you would be on an unpaid leave, and (b) your now asking to be paid for the 200 hours, this would be considered a problem in any place of business I know.   

3. I believe you are entitled to credit or payment for the 200 hours, as they were worked, and you can establish that. What we call “wage and hour laws,” both state and federal, give you a very strong right to get paid for time you’ve worked, no matter where you worked them. That is not a matter of the FMLA law, but of wage and hour laws. So, for this, you should be confident that you will be paid, or credited, by your employer. If not, you would have a pretty good case to file a complaint with Nebraska’s Department of Labor. Instructions and forms for filing a wage complaint in Nebraska can be found at www.dol.nebraska.gov.   

4. Like any other relationship, continual efforts at clear communication are essential to maintain a good employment relationship. I ask you to consider how you would feel if, on payday, your check did not clear. Then, your boss told you, “Sorry, but I was supposed to tell you last week, your job ended last Friday. Sorry for the miscommunication.” Wow, you surely would be upset, and rightfully so. I think that is something close to how your boss sees her situation.

In my office, too, we always have our own share of miscommunications and lack of communication. It’s a daily – and sometimes moment-to-moment – struggle. Think of others. Think of their needs. Remember they are 110% busy and preoccupied with their own concerns. Be clear, be concise, be considerate and be careful in your messages. And listen attentively, too. For attentiveness to others is the first step in good communications.

And I don’t mean to forget your expression of feeling bullied, disrespected and harassed. You may be right to feel that way. But your failure to communicate clearly your intention to work when you had earlier said you were on leave has given your boss – assuming she does not like you – an opportunity to hurt you. Don’t let that happen again – keep your communications open, clear and unquestionable. 

I’m confident this was not the answer you sought, but I do think it is the answer to your overriding question about how to deal with this situation.

Thanks, in any case, for writing in, and I do hope you’ve found this information helpful. We’d very much appreciate it if you would use our advertisers – by clicking to them on our blogsite – and in that way help us keep going with what we do.

Al Sklover

© 2011 Alan L. Sklover, All Rights Reserved.

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