A New York high school teacher fell ill, required gall bladder surgery, and was absent for 9 calendar days to recover. That was during his second year at a high school, which was also his third year of probation. He was heavily criticized for his absences, including the surgery leave, and the district rejected his bid for tenure. He sued.

What happened. "Donaldson" had 5 years’ teaching experience when he joined the staff of the Greenburgh Central School District. He spent his first year at Westchester Magnet Academy, where he got rave reviews but was then sent to Woodlands High when the magnet school closed. His evaluations were excellent for the first year, but in late November of the following year, he underwent his surgery and took leave under the Family and Medical Leave Act, or FMLA.

Unfortunately, the district had recently begun a new focus on teacher absenteeism, which required that every teacher be specifically evaluated on absences in addition to classroom performance and 24 other evaluation categories. Once he’d been refused tenure, Donaldson sued the school district and some staff members for retaliation, charging they’d denied him tenure because he’d used FMLA leave.

Working with the defendants, a judge in federal district court reviewed the school district’s collective bargaining agreement with the teachers’ union and agreed that according to the union’s calculations, Donaldson had worked for only 1,247 hours during the year before his leave. So he wasn’t eligible for leave, and the district couldn’t thus be liable for retaliating against him for his absence, which wasn’t protected. Donaldson appealed to the 2nd Circuit, which covers Connecticut, New York, and Vermont.

What the court said. Appellate judges found this case involved both the FMLA and the Fair Labor Standards Act (FLSA). The teachers’ union agreement specified that teachers work up to only 1 hour beyond the school day, for a total of 7 hours and 15 minutes a day. That gave Donaldson only 1,247 hours for the prior year. In court, he said he’d worked for at least another 3 hours beyond that, but he couldn’t provide more evidence.

Appellate judges pointed to a U.S. Department of Labor FLSA regulation placing the full burden on the employer of proving that an employee did not work the extra hours he or she claims. On that basis, they sent the case back to the district judge for reconsideration. Donnelly v. Greenburgh Central School District, U.S. Court of Appeals for the 2nd Circuit, No. 11-2448-cv (8/10/12).

Point to remember: Employers need to pay more attention than ever to tracking especially nonexempt employees’ hours.