Under the FMLA, an employee does not become eligible to take FMLA leave until such time that s/he has worked at least 1,250 hours and 12 months. However, according to the 11th Circuit (FL), being eligible to take leave is not the same as being eligible to request leave.
In Pereda v. Brookdale Senior Living Communities, Inc., the plaintiff, Kathryn Pereda, submitted a request for FMLA leave. Prior to her one-year anniversary the employee was terminated. Pereda filed a two-count complaint alleging interference (count 1) and retaliation (count 2) under the FMLA. The district court held that because Pereda was not an eligible employee at the time she was terminated (she had not yet reached her one-year anniversary), she could not bring either claim under the FMLA.
The 11th Circuit Court had two issues to address: (1) Can the employee pursue a claim under FMLA and (2) was the employee protected by the statute?
Pereda argued that if the district court decision was allowed to stand, employees "will fear mentioning leave in anticipation of the birth of a child. Moreover, employees would cease to provide their employers with adequate notice of the impending absence in fear of retaliation."
To reach a decision the 11th Circuit had to determine whether the employee could be considered an "eligible employee" for the purposes of FMLA. The employer argued that the employee was not an "eligible employee" at the time she was terminated and therefore was not protected by the statute.
The 11th Circuit appeal: Whether the FMLA protects a pre-eligibility request for post-eligibility leave. The 11th Circuit answered that question in the affirmative.
The findings: The 11th Circuit determined that the eligibility "is determined" at the time the employee would have taken the leave. The employee would have been eligible for leave because she would have been employed for the full 12 months. "After examining the various elements of the FMLA regulatory scheme, such as the 30-day notice requirement and the DOL implementing regulations, we conclude that allowing the district court's ruling to stand would violate the purposes for which the FMLA was enacted. Without protecting against pre-eligibility interference, a loophole is created whereby an employer has total freedom to terminate an employee before she can ever become eligible. Such a situation is contrary to the basic concept of the FMLA."
As an employer I would want an employee to provide as much advance notice of FMLA leave as possible. This will allow me to make the necessary arrangements, to back-fill the position, etc., to ensure that the organization is not unduly impacted by the employees absence. What message do we send employees when we terminate an employee who gives advance notice of the need for FMLA?
In Pereda v. Brookdale Senior Living Communities, Inc., the plaintiff, Kathryn Pereda, submitted a request for FMLA leave. Prior to her one-year anniversary the employee was terminated. Pereda filed a two-count complaint alleging interference (count 1) and retaliation (count 2) under the FMLA. The district court held that because Pereda was not an eligible employee at the time she was terminated (she had not yet reached her one-year anniversary), she could not bring either claim under the FMLA.
The 11th Circuit Court had two issues to address: (1) Can the employee pursue a claim under FMLA and (2) was the employee protected by the statute?
Pereda argued that if the district court decision was allowed to stand, employees "will fear mentioning leave in anticipation of the birth of a child. Moreover, employees would cease to provide their employers with adequate notice of the impending absence in fear of retaliation."
To reach a decision the 11th Circuit had to determine whether the employee could be considered an "eligible employee" for the purposes of FMLA. The employer argued that the employee was not an "eligible employee" at the time she was terminated and therefore was not protected by the statute.
The 11th Circuit appeal: Whether the FMLA protects a pre-eligibility request for post-eligibility leave. The 11th Circuit answered that question in the affirmative.
The findings: The 11th Circuit determined that the eligibility "is determined" at the time the employee would have taken the leave. The employee would have been eligible for leave because she would have been employed for the full 12 months. "After examining the various elements of the FMLA regulatory scheme, such as the 30-day notice requirement and the DOL implementing regulations, we conclude that allowing the district court's ruling to stand would violate the purposes for which the FMLA was enacted. Without protecting against pre-eligibility interference, a loophole is created whereby an employer has total freedom to terminate an employee before she can ever become eligible. Such a situation is contrary to the basic concept of the FMLA."
As an employer I would want an employee to provide as much advance notice of FMLA leave as possible. This will allow me to make the necessary arrangements, to back-fill the position, etc., to ensure that the organization is not unduly impacted by the employees absence. What message do we send employees when we terminate an employee who gives advance notice of the need for FMLA?
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