FMLA Just Got Messy: DOL Redefines “Normal Workweek” for Shift Workers

Employees with irregular or extended schedules (like correctional officers, nurses, EMTs, and other shift-based workers) have a new way to calculate Family and Medical Leave Act (FMLA) entitlements per a DOL Opinion Letter, FMLA2025-02-A (Sept. 30, 2025). In summary, under the Opinion Letter, FMLA hours are based on the actual “normal workweek,” not a standardized 40-hour figure, where mandatory overtime now counts, but voluntary overtime does not. As a result, an employee’s 12 weeks of FMLA leave must reflect that employee’s schedule, not a default 40-hour standard. For example, a correctional officer working 84 hours every two weeks (12-hour shifts, mandatory overtime included) is entitled to 504 hours of FMLA leave, not 480. Employers must also deduct leave on that same basis: hours actually missed from the normally scheduled workweek. To put it simply, if an employee skips required overtime because of FMLA leave, those hours count against their entitlement. But if they skip voluntary overtime, it doesn’t.

Simply, under the Opinion Letter, DOL drew a fuzzy (and litigable) line between “mandatory” and “voluntary.” These types of fuzzy lines result in litigation where an employee will claim that they were ‘pressured’ to pick up shifts or 'strongly suggested’ to take extra hours. Rather than clarifying the rules, the DOL has created a new battleground for disputes over scheduling language and payroll records. Employers are now left to prove, retroactively, that a shift was truly voluntary. Employers with shift differentials, rotating schedules, or recurring overtime must audit how they calculate FMLA entitlement and usage. HR systems that default to a 40-hour week are officially outdated. The DOL has made it clear that if your FMLA math doesn’t match your reality, you’re violating federal law.

The bottom line is that employers, especially in public safety and healthcare, need to redefine their policies before the lawsuits hit. Audit your “mandatory” overtime definitions, verify your FMLA tracking system, and get your documentation airtight. Because after this Opinion Letter, one miscounted hour could mean an FMLA interference claim.

Don’t wait for an FMLA lawsuit to expose your timekeeping gaps.

📞 Contact Lieb at Law, P.C. to audit your overtime policies, HR systems, and FMLA compliance before enforcement begins. Call Lieb at Law, P.C. 646-216-8009. 

*attorney advertising

PAID Program: False Promise or Smart Strategy for Employers?

The US Department of Labor's Wage and Hour Division (WHD) recently relaunched a self-audit program for US private employers called the Payroll Audit Independent Determination (PAID) program. It bills itself as a "program to help employers resolve potential minimum wage and overtime violations under the Fair Labor Standards Act (FLSA), as well as certain potential violations under the Family and Medical Leave Act (FMLA)." Sounds like a great idea to resolve pay issues quickly without penalty, right?

However, while the program purports to "allow[] employers to correct mistakes efficiently and ensure employees receive back wages or other remedies promptly, all while avoiding litigation," THIS IS FALSE ADVERTISEMENT and the program should be avoided by employers, except in very limited circumstances. 

Employers should be warned that PAID cannot waive employee's federal FLSA / FMLA / Discrimination related claims and does not even address state claims, such as NYS Paid Family Leave or state wage and hour suits under the New York State Labor Law. Here is the rub, while PAID is designed to "quickly provide 100% of the back wages due" to employees, under applicable federal law employees who bring suit can recover liquidated damages, or 200% of the back wages, plus attorneys' fees and costs. In fact, under the NYS labor law, if unpaid wages are found to have been willful, recovery jumps to a possibility of 400% of the back wages. So, ask yourself, would you be happy, as an employee, in only getting 100% when you can recover 400%. For employers, it seems like a much better strategy in mitigating exposure to negotiate tailored settlements with each individual employee who is owed wages where the employer should obtain a release prior to ever considering revealing evidence to the government and alerting those employees as to their rights, no? 

Don't forget that an employee can seek a penalty under paid family leave and potentially, if there is also discrimination involved, which is frequently the case when paid family leave is wrongfully denied, an employee can also recover emotional support damages. 

So, if an employer utilizes the PAID program, an employee should immediately consult with an employment attorney and pursue getting paid the damages that they are due. 

If you’re facing wage, leave, or discrimination issues, consult with the experienced employment attorneys at Lieb at Law, P.C. to protect your rights and develop a winning strategy.

*attorney advertising

Biden Issues Memorandum Supporting Family Leave for Fed Employees

On February 7, 2023, President Biden threw his support behind paid family leave in publishing a memorandum in the Federal Register, which reads: "supports a national, comprehensive paid family and medical leave program that will ensure that workers have access to paid leave to bond with a new child; care for a seriously ill loved one; deal with a loved one's military deployment; heal from the worker's own serious illness; grieve the death of a loved one; or seek safety and recover from domestic violence, dating violence, sexual assault, or stalking."

Sounds great, right? 

However, if you read on further, the memorandum states as follows: "the heads of executive departments and agencies (agencies) are encouraged to consider providing leave without pay for Federal employees, as appropriate and consistent with applicable law."

So, in all, lots of words about paid family leave, but not any greater rights to obtain paid family leave, let alone, unpaid leave, were even given. 

That said, for private sector employees, at least, you have rights under the Family and Medical Leave Act and in NYS, under the Paid Family Leave.