The 13-Week Rehire Rule
An employee returning after at least 13 consecutive weeks without an hour of service can be treated as a new hire. Educational organizations use 26 weeks. A shorter gap makes the person a continuing employee.
The three things to know.
New Hire or Continuing Employee
After the break the employee is measured as new, which means a new initial measurement period if they are variable-hour. A shorter gap means their earlier hours stay in the picture.
Zero-Hour Weeks Stay In
For a continuing employee the weeks with no hours remain in the average, which can lower it.
The Rule of Parity
An employer may also treat a returning employee as new when the break is at least four weeks long and longer than the employee’s preceding period of employment.
Sources: 26 CFR § 54.4980H-3. General information, not legal advice.
A worked example.
A Returning Barista
A barista leaves on March 1 and returns on July 1, a gap of about 17 weeks with no hours of service. The employer is not an educational organization.
What the Rule Produces
The gap exceeds 13 consecutive weeks, so the employer may treat her as a new hire on return and, if hours are uncertain, give her a new initial measurement period. A gap of 10 weeks would have kept her prior hours in the average.
Four steps to apply it.
1. Find the break
Count consecutive weeks with no hours of service.
2. Apply the right threshold
Use 13 weeks, or 26 for educational organizations.
3. Decide new or continuing
Record how you treat the return.
4. Update the file
Note the dates and classification.
Where it goes wrong. Counting weeks of paid leave as a break, even though paid leave is hours of service.
The questions that come up next.
Do paid leave weeks count as hours?
Yes. Hours for which the employee is paid or entitled to payment are hours of service, so paid leave weeks do not count toward the break.
Can we use a longer break rule?
Not to avoid the mandate. The regulation sets the break length, and arrangements that circumvent the rehire rules are not respected.
Does a seasonal worker returning each year start over?
If the break meets the rehire rule they are a new hire each season. Otherwise their prior employment continues.
Does the break need to be continuous?
Yes. The rule looks at consecutive weeks without an hour of service.
Can we choose to treat a longer break as continuing?
Treatment must follow the regulation, and arrangements aimed at avoiding the rules are not respected.
Plan-specific questions belong with ERISA counsel, and we will bring them in.
Related pages on the look-back method.
Special Unpaid Leave
For continuing employees, special unpaid leave such as FMLA, USERRA and jury duty leave is either excluded from the average or credited at the employee’s average weekly rate.
A Job Change Inside the Period
A promotion to 40 hours does not make an employee found not full-time into a full-time employee until the stability period ends, and a cut to 15 hours does not remove a full-time employee.
The Full Look-Back Guide
Every rule, example and source behind this page, in one place.
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