FMLA – 11th Circuit Holds A Pre-Eligible Request For A Post-Eligible FMLA Leave Is Protected By The FMLA

by Labor & Employment Group

(402) 341-3070

One might say the law under the FMLA is  “getting curiouser and curiouser.” In order to be eligible for FMLA leave, an employee must have worked 1250 hours in a 12-month period as of the date leave is taken. Under a recent decision of the 11th Circuit Court of Appeals, an employee may still have some FLMA protection, even before they become eligible for FMLA leave.

Kathryn Pereda began working for Brookdale Senior Living Communities, Inc. on October 5, 2008. In June of 2009, some four months before she would have one year of service, she informed her employer that she was pregnant and would need to take FMLA leave upon the birth of her child in November of 2009. She claimed that prior to informing Brookdale of her pregnancy she was regarded as an excellent employee. She claimed that once she advised Brookdale of her anticipated need for FMLA leave, things changed. Her performance began to be criticized, she received warnings and was put on a performance plan. In September of 2009 her doctor ordered her to bed rest due to pregnancy complications. She took some sick leave for which she was eligible and contends she tried to call her employer to inform them she would not be coming to work for a few days. When she finally reached someone at Brookdale, she was told she was fired, just one month before becoming FMLA eligible.

Pereda brought suit under the FMLA alleging Brookdale had interfered with her FMLA rights and retaliated against her for exercising rights under the FMLA by her June 2009 request for leave. Brookdale moved to dismiss the complaint contending that Pereda was not eligible for FMLA leave at the time she requested the same and, since her employment was terminated before she became FMLA eligible, she had no cause of action. The District Court agreed with Brookdale and dismissed her lawsuit.

On appeal, the 11th Circuit first noted that there are two types of claims under the FMLA. First, there is a cause of action for “interference with” substantive rights under the statute. Second, like most employee protection/benefit laws, an employee may also state a claim of “retaliation” for exercising rights under the statute.

In order to state a claim of “interference,” the employee must show they were denied a benefit to which they were entitled under the FMLA. In this case, the court noted that the FMLA requires advance notice of the need for a leave which is “foreseeable.” Pregnancy is just such a leave. The advance notice required is at least 30 days. Here, Pereda gave over four months’ notice. The purpose of such advance notice, the court noted, was in part to enable the employer to plan for that absence. The court held that allowing the employer to discharge an employee once they have given that notice, even before they are eligible, is inconsistent with that “purpose.” It would most certainly, in the court’s view, discourage pregnant employees from giving that advance notice and enabling the planning the statute was designed to foster. Thus, the court concluded the FMLA does protect an employee who provides pre–eligible notice of a need to leave to commence after that employee has become eligible for the FMLA leave.

As to the retaliation claim, the court noted the employee must establish that they engaged in a protected act under the FMLA; that following the same, they received adverse treatment; and that there is a causal connection between the two events. Pereda contended her request for FMLA leave was the protected act, and her termination the adverse consequence. In dismissing this claim, the District Court held that since she was not FMLA eligible at the time of her termination, she could not have been engaged in any protected act. The Circuit Court disagreed noting that the pre-eligible request for leave must be regarded as a protected activity.

The court denied that it was creating a new class of persons with FMLA protection. It also did not find that Pereda was unlawfully terminated, nor did it order reinstatement or the payment of back pay. The court here limited its holding to the procedural posture in which the case had been presented. Brookdale sought to have the complaint dismissed on procedural grounds, namely that an employee not yet eligible for FMLA leave cannot state a claim under the FMLA. The 11th Circuit disagreed with Brookdale and held that such a “claim” could be presented to a court. The case was remanded for a trial on the merits where Pereda must prove that the discipline/termination was because of her exercise of FMLA rights, and was not otherwise justifiable. Brookdale will have the opportunity to prove the legitimacy of the discipline it imposed.

This decision should caution employers not to make the assumption that any request by an employee not yet eligible for FMLA leave can be ignored. Brookdale argued that the court’s holding would enable a newly-hired employee to make a request for FMLA leave the day following their date of hire, which such leave to commence after they become eligible 12 months hence. The court described that argument as a “non-starter,” without further explanation. It would be difficult to conceive how such a request could serve as legitimate advanced notice of the need for a leave, and employers do have the right, and should inquire as to the underlying basis for the “need” request.

Finally, as with any employment relationship, employers should always document performance deficiencies and legitimate discipline.

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