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I have a serious chronic health condition and I am on intermittent
FMLA. My employer offers double the hourly wage for those who sign up
for overtime..I was told that if I sign up and work an overtime day
and call off using my FMLA within that week that I will then be
dropped down to time and a half after 40 hours. Can they legally take
the sign up bonus away from me for using my FMLA? Can they penalize me
for using my FMLA? I live in Pennsylvania.
Asked on September 13, 2016 under Employment Labor Law, Pennsylvania
SJZ, Member, New York Bar / FreeAdvice Contributing Attorney
Answered 5 years ago | Contributor
FMLA leave time, like paid holiday time, vacation hours, sick leave hours, etc., does not count for overtime in the law: only actual time spent *working* does. Therefore, your employer would not have to let you get *any* overtime unless the hours you work (not including FMLA, etc. time) exceeds 40 hours, and if they let you get time-and-half instead of of double time for a work week that includes FMLA hours, they are going above and beyond their obligations. Furthermore, the law does NOT require double time--only time and a half--so since the employer is voluntarily choosing to give employees an extra bonus in certain situations, they are free to set the criteria for getting it--including no FMLA use.
Based on what you write, there is no retaliation--not only is the employer legally allowed to do this, they may be more generous than required.
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