In Pagan-Colon v. Walgreens of San Patricio, 2012 U.S. App. LEXIS 18595 [enhanced version available to Lexis.com subscribers], the First Circuit held as a matter of first impression that an award of back pay under the FMLA includes overtime. A jury entered judgment in favor of the plaintiff on his FMLA retaliation claim. On appeal the First Circuit held:
Although we have not previously addressed the issue, we see no reason why overtime pay should not be included in an award of backpay under the FMLA. The FMLA provides that an employee may recover "any wages, salary, employment benefits, or other compensation denied or lost ... by reason of the violation." 29 U.S.C. § 2617(a)(1)(A)(i)(I). Overtime certainly falls into the category of "other compensation."
The overtime was calculated based on the plaintiff's year-to-date average of 6.5 hours of overtime per week.
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