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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 6 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.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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