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Retaliation For Requesting FMLA Leave Before Becoming Eligible

Kathryn Pereda had worked for Brookdale Senior Living Communities for only eight months when she became pregnant and advised her supervisor that she would be requesting time off under the Family and Medical Leave Act (FMLA) when the baby arrived. At that time, Pereda was not yet eligible to take FMLA leave because she had not worked for Brookdale for at least 12 months.

Shortly after being informed of her pregnancy and her intent to request FMLA leave, Pereda claimed that she was harassed by her employer to the point of causing medical problems with her pregnancy. She was placed on a performance improvement plan despite being considered a top employee prior to the announcement of her pregnancy.

Pereda was fired two months before her baby was due and one month before becoming eligible for FMLA leave. She brought suit against Brookdale for interference with and retaliation for requesting FMLA leave, but her employer argued that because she was not yet eligible for FMLA job-protected leave, they could not have retaliated against her for requesting the leave time.

The district court agreed with Brookdale, but the 11th Circuit Court of Appeals did not. Instead it held that a pre-eligibility request for FMLA leave that wouldn’t be taken until eligibility has accrued could be the basis for an FMLA retaliation claim for the Florida employee. The Court noted that it wasn’t expanding the protections of the FMLA but that it was simply eliminating what would otherwise be a loophole that would allow employers to fire employees not yet eligible for FMLA leave for requesting FMLA leave for a future date.

Although Pereda was not eligible for FMLA leave at the time she was fired, her claim for retaliation and interference with FMLA leave was valid because she would have been eligible at the time she had intended to use the time for maternity leave.

Source: Business Management, “FMLA: Worker may be protected even before she’s eligible,” Mindy Chapman, April 17, 2012

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