The Eleventh Circuit Court of Appeals recently held in a case of first impression in this circuit that the Family and Medical Leave Act (FMLA) “protects a pre-eligibility request for post-eligibility leave.” That is, the FMLA protects an employee who gives notice, before she is eligible for leave, of intent to take FMLA leave for a qualifying reason once she becomes eligible. Pereda v. Brookdale Senior Living Communities, Inc., D.C. Docket No. 0:10-cv-60773-FAM, Eleventh Circuit Court of Appeals (January 10, 2012).

Factual Background

Kathryn Pereda began working for Brookdale’s Pompano Beach facility on October 5, 2008. In June 2009, Pereda advised her employer that she was pregnant and would request FMLA leave after the birth of her child on or about November 30, 2009. In September 2009, approximately 11 months after her hire, Pereda’s employment was terminated.

Pereda sued her employer, claiming that the decision to terminate her employment following her request for FMLA leave constituted both interference and retaliation under the FMLA. The trial court granted the employer’s motion to dismiss, stating that the employer could not have interfered with Pereda’s FMLA rights because she was not entitled to FMLA leave at the time she requested it. The trial court further held that since Pereda was not eligible for FMLA leave, she could not have engaged in protected activity, and, accordingly, her employer could not have retaliated against her. Pereda appealed the decision to the Eleventh Circuit.

Legal Analysis

Employees may assert two types of claims under the FMLA: “interference,” where an employer allegedly denies or interferes with the employee’s substantive rights under the FMLA; and “retaliation,” where an employer allegedly discriminates against the employee for engaging in activity protected by the FMLA.

In order to be protected by the FMLA, an employee must be eligible (that is, have worked for the employer for at least 12 months and have worked at least 1,250 hours during the previous 12 months) and must experience a “triggering event,” such as the birth of a child. In this case, the parties agreed that at the time Pereda requested leave, she was not eligible for FMLA protection, as she had not worked sufficient hours or experienced a triggering event. The parties also agreed that Pereda would have been eligible by the time she gave birth and began her requested leave. Consequently, the Eleventh Circuit concluded that allowing the district court’s ruling to stand would create a loophole “whereby an employer has total freedom to terminate an employee before she can ever become eligible” and that “[s]uch a situation is contrary to the basic concept of the FMLA.”

The Eleventh Circuit held that with regard to Pereda’s interference claim, “because the FMLA requires notice in advance of future leave, employees are protected from interference prior to the occurrence of a triggering event, such as the birth of a child.” The court noted that the notice period described in 29 U.S.C. § 2612(e)(1), which requires that an employee provide an employer with 30 days notice of foreseeable leave, was “meant as protection for employers to provide them with sufficient notice of extended absences.” The court stated that failing to provide a remedy for an employee who “in goodwill exceed[s] the [30-day] notice requirement,” would create a “trap for newer employees” and extend to employers a “significant exemption from liability.”

The court stated that its holding does not expand FMLA coverage to a new class of employees; rather, it means that an employee who is not yet eligible for FMLA leave may bring a lawsuit if an employer terminates the employee “in order to avoid having to accommodate that employee with rightful FMLA leave rights once that employee becomes eligible.” A determination of whether that happened here will be made on remand of the case to the trial court.

With regard to Pereda’s retaliation claim, the Eleventh Circuit held that in light of its conclusion that the FMLA protects a pre-eligibility request for post-eligibility maternity leave, Pereda also could state a cause of action for FMLA retaliation. The court reasoned that a pre-eligibility request for post-eligibility leave is protected activity “because the FMLA aims to support both employees in the process of exercising their FMLA rights and employers in planning for the absence of employees on FMLA leave.”

As Pereda appealed from the trial court’s ruling on her employer’s motion to dismiss, the Eleventh Circuit noted that “the question remains for the district court as to whether there is colorable evidence” that the employer retaliated against Pereda.

Finally, the employer in this case argued that the Eleventh Circuit’s ruling could lead to a slippery slope where an employee might announce on the first day of work his or her anticipated need for FMLA leave 364 days later and be protected. In response, the Eleventh Circuit reiterated the well-settled principle that employees such as Pereda, regardless of their FMLA status, may be terminated for legitimate reasons “such as poor performance or dishonesty.”

Practical Impact

Employers should be aware that an employee who announces a future need for FMLA leave prior to becoming eligible for such leave may be protected by the FMLA if it appears likely the employee would be eligible by the time the leave were to commence.


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