Arbitrator's ruling in Lackawanna County Prison FMLA case upheld

Aug. 26—A Lackawanna County judge upheld an arbitrator's ruling that makes it less attractive for county prison employees to use the Family Medical Leave Act to avoid working mandatory overtime.

Judge Terrence Nealon's ruling means that for scheduling purposes, the prison cannot credit employees who invoke FMLA to refuse an overtime mandate as if they had worked the shift.

The use of FMLA to refuse shifts has been a controversial issue at the prison because it can result in employees who are not approved for the leave being mandated more often than those who are.

Under the overtime policy, the prison seeks volunteers to cover open shifts. If not enough come forward it mandates employees based on seniority, with the newest employees at the top of the list.

The arbitration case challenged the prison's policy that allowed those who invoke FMLA to refuse a shift to be given credit as if they had worked it, meaning their name went to the bottom of the rotation on the list.

An arbitrator nixed the policy in March, finding that it violated the union contract, which allows members to receive credit only if they use personal, vacation or bereavement leave to cover the mandated shift.

Under the arbitration ruling, employees who invoke FMLA stay at the top of the overtime rotation list, instead of the bottom. That could result in them being mandated more often and having to use allotted FMLA leave more quickly.

The county challenged the ruling, fearing it violated a federal law that bars employers from interfering with an employee's right to FMLA leave. In his ruling, Nealon said that, by law, he can overturn an arbitration ruling only if the arbitrator's decision does not follow the contract. In this case, FMLA leave is not among the types of leave specified in the contract for which employees can receive the overtime credit.

"The county has not established that the arbitrator's award indisputably and genuinely is without foundation. ... As a result, its petition to vacate" is denied, Nealon said.

Matthew Carmody, attorney for the county, said officials have not decided if they will appeal the decision.

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