May 11, 2012 | No Comments
Posted by admin
Earlier this year, in a case of first impression, the 11th Circuit Court of Appeals held that the Family and Medical Leave Act (“FMLA”) “protects a pre-eligibility request for post-eligibility leave.” In other words, an employee who gives notice, before becoming eligible for leave, of intent to take FMLA leave for a qualifying reason once becoming eligible, can state a state a cause of action under the FMLA. Pereda v. Brookdale Senior Living Communities, Inc., D.C. Docket No. 0:10-cv-60773-FAM, 11th Circuit Court of Appeals (January 10, 2012).
Kathryn Pereda, a former employee at Brookdale’s senior living facility in Pompano Beach, sued the company claiming interference and retaliation under the FMLA. Pereda began working for the facility on October 5, 2008. In June 2009, Pereda notified her employer that she was pregnant and would request FMLA leave after the birth of her child anticipated on or about November 30, 2009. Thus, at the time Pereda put in her request to take FMLA leave, she had not yet been employed for 12 months, an FMLA eligibility requirement. In September 2009, just shy of her 1-year anniversary of employment with the company, Pereda’s employment was terminated.
The district court granted the employer’s motion to dismiss finding: (1) that there could be no interference with FMLA rights because Pereda was not entitled to FMLA leave at the time she requested it; and (2) because Pereda was not eligible for FMLA leave she could not have engaged in protected activity, and her employer could not have retaliated against her. The 11th Circuit reversed on appeal.
Concerned that the district court’s ruling would “create a loophole” allowing an employer total freedom to terminate an employee before ever becoming eligible, the 11th Circuit held that because the FMLA requires notice in advance of future leave, employees are protected from interference even prior to the occurrence of the triggering event, such as the birth of a child. Based on its finding that the FMLA protects a pre-eligibility request for post-eligibility leave to care for a newborn child, the 11th Circuit found that Pereda could also state a claim for retaliation because that “pre-eligibility request for post-eligibility leave is protected activity.” Thus, pursuant to the 11th Circuit’s ruling an employee who announces on the first day of work an anticipated need for FMLA leave 364 days later may allege a valid cause of action under the FMLA. The determination as to whether Pereda’s employer actually engaged in interference and/or retaliation in violation of the FMLA will be decided by the district court on remand.
Is the 11th Circuit’s rationale the start of a trend that will influence other jurisdictions to reach the same determination? This remains to be seen. In the interim, employers should be sensitive to the possibility that employees who announce a need for leave under the FMLA in the future prior to becoming eligible may avail themselves of the protections afforded by the FMLA while keeping in mind the well-settled principle that regardless of their FMLA status, employees may be terminated for legitimate reasons.