The same legal standards used for the federal overtime pay law – Section 7 of the Fair Labor Standards Act – should be used to determine whether an employee meets the Family and Medical Leave Act’s 1250 hours of service requirement. Although the FLSA does not explicitly set out how to compute "hours worked," the U.S. Supreme Court established a test that looks at whether the time is spent predominantly for the employer's benefit or for the employee's benefit. Factors to consider include:

• the agreement of the parties,
• the nature and extent of the restrictions,
• the relationship between services rendered and on-call time, and
• all surrounding circumstances.

Courts have found that the following types of activities should be counted toward the FMLA’s 1250 hours requirement:

• the hours that a flight attendant spends saying goodbye to and thanking deplaning passengers;
• the pre-shift 15 minutes that a radiologist spent preparing the office to receive walk-in patients at 8:00 a.m. when her shift started;

Counting hours not worked can be problematic. Generally, only hours actually worked are counted, but there are exceptions. Under the Uniformed Services Employment and Reemployment Rights Act, returning service members are entitled to all of the benefits of employment that they would have obtained if they had been continuously employed. This means that the hours that a returning service member would have worked but for military service need to be combined with the hours actually worked.

Employers may also have to count the hours that an employee did not actually work when an employee has been returned to work through an arbitration award. Once federal court of appeals, the First Circuit, has held that because he did not "actually work," an employee who successfully grieved his discharge could not count the hours spent pursuing the grievance even though the arbitration award required that he be paid full wages and benefits lost while the grievance was being processed. However, another federal court of appeals, the Sixth Circuit, has held that the time an employee did not work because of an improper termination should not be excluded from the FMLA's eligibility requirement. According to the Sixth Circuit, the goal of a make-whole award is to put the employee in the same position that the employee would have been in but for the employer's unlawful conduct.