How Does The FLSA Overtime Calculation Affect FMLA Use?

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For the FLSA overtime calculation, which has an implementation deadline of December 1 of this year, there are more implications than simply determining whether an employee is exempt or non exempt.  There may also be some changes in an employee’s usage rights for FMLA leave.  

Because FMLA leave entitlement is based on the actual workweek (see 29 CFR § 825.205), which may or may not be 40 hours, an employee who moves from exempt to nonexempt, may have different leave entitlement than he or she did before. Below are some examples of how to apply the new overtime rule for FMLA purposes:

  • A full-time nonexempt employee who typically works 48 hours per week has FMLA leave entitlement based on 48 hours (i.e., eight hours of leave is 1/6 of a week of entitlement), whereas an exempt employee, who typically works 48 hours per week, has FMLA entitlement based on a 40-hour week (i.e., eight hours is 1/5 of a week). 
  • Part-time employees, who work less than 30 hours a week, are entitled to leave based on the actual hours they work in a week.  For example, an employee who works 24 hours per week and takes 8 hours of FMLA leave, is essentially taking 1/3 week of their entitlement.
  • According to, “where the employee’s workweek fluctuates over time, the calculation of leave needs to take into account those fluctuations. Each week is considered a separate week for calculation purposes, which may lead to fractional calculations being used for weeks.” So 8 hours of FMLA leave per week will have different entitlement implications each week for an employee with fluctuating hours.


For more information about how the new overtime rule will affect FMLA leave entitlement, or anything else, please Contact Us. Thanks.

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