Employee May Bring FMLA Retaliation Claim Although Leave Had Not Commenced When Allegedly Unlawful Action Occurred

Erdman v. Nationwide Ins. Co., 2009 WL 3018116 (3d Cir., September 23, 2009) – The Third Circuit Court of Appeals has ruled that an employee can state a claim for retaliation under the Family and Medical Leave Act (FMLA) even though the employee’s FMLA leave has not actually commenced. The plaintiff was terminated three weeks after requesting an FMLA leave, but before her leave began. The employer argued that the plaintiff could assert only an interference claim, but not a retaliation claim, because the regulations prohibit an employer from discriminating against employees who “have used” FMLA leave. The court held otherwise, stating the FMLA prohibits retaliation for invoking a right to leave, as well as for taking leave. Therefore, firing an employee for making a request for FMLA leave may constitute retaliation as well as interference.

Note: This article was published in the October 2009 issue of the New Jersey eAuthority.