A Capehart Scatchard Blog

Circuit Court Holds That The FMLA Protects A Pre-Eligibility Leave Request For Post-Eligibility Maternity Leave

By on March 18, 2012 in FMLA with 0 Comments

Employers need to consider the risks of terminating an employee who has asked for FMLA and would soon become eligible

Kathryn Pereda brought a suit for interference with her FMLA rights against her employer, Brookdale Senior Living Communities, Inc. in Florida.  The problem from a legal point of view with her law suit is that she did not have the necessary 1,250 hours and one year of employment for eligibility.  She began with the company on October 5, 2008 and was terminated 11 months later.  She advised her employer in June of 2009 that she was pregnant and would be requesting FMLA on or about November 30, 2009.  She was terminated in September 2009, not having worked one full year at that time and not having 1,250 hours at that time.

Pereda argued that she was a top employee but after the company found out about her pregnancy, everything changed for the worse.  She said she was harassed by management and her job performance suddenly was criticized.  She was placed on a performance improvement program, but the company  began writing her up for taking leave to visit the doctor. 

In August 2009 Pereda took a few days off and notified her employer.  When she returned to work, she was written up by management again, this time for not getting verbal authorization for her absence.  She experienced medical issues related to her pregnancy and used sick, personal and vacation days.  In September she took some more days off and tried to reach someone at the company.  Several days after she reached someone, she was fired.

The federal district court dismissed plaintiff’s FMLA interference claim because she did not have the requisite one year of employment and 1,250 hours at the time she was fired.  The court noted that under the FMLA regulations the determination of whether an employee meets the hours and one-year employment requirement is made as of the date the FMLA leave is to start.  29 C.F.R. 825.110(d).   The court noted that she had not worked the number of hours when she was fired, but she would have been entitled to FMLA protection by the time she would have given birth.   The federal court said Pereda was not eligible for FMLA leave when she made her request, so her employer could not have violated her FMLA rights.

In a surprising opinion, the Eleventh Circuit reversed this decision. It focused first on the notice provision, which states, “In any case in which the necessity for leave . . . is foreseeable based on an expected birth or placement, the employee shall provide the employer with not less than 30 days’ notice, before the date the leave is to begin, of the employee’s intention to take leave. . . “ 29 U.S.C. 2612(e)(1). 

The court next cited an Illinois decision which stated, “It would be illogical to interpret the notice requirement in a way that requires employees to disclose requests for leave which would, in turn, expose them to retaliation, or interference, for which they have no remedy.” (citations omitted).

The court reasoned as follows in ruling for plaintiff.  “Without remedy, the advanced notice requirement becomes a trap for newer employees and extends to employers a significant exemption from liability.” 

If we were to hold that Pereda had no cause of action for interference because she had not yet been employed the full 1,250 hours during a 12-month period, or given birth to her child, then she should not be required to give her employer any advance notice of impending leave.  As the statute requires advance notice, logic mandates that FMLA be read to allow a cause of action for employees who, like Pereda, in goodwill exceed the notice requirement.

The policy rationale behind this controversial decision is that when someone gives notice of intention to use FMLA, it should not justify the actions of an employer in interfering with potential FMLA rights.  This decision is binding in the Eleventh Circuit (which includes Florida) but is not binding on other circuits.  It seems to ignore the concept of eligibility under the FMLA, and it is doubtful that other circuit courts will unanimously follow this case.  The case may be found at Pereda v. Brookdale Senior Living Communities, Inc, 666 F.3d 1269 (11th Cir. 2012).


About the Author

About the Author:

John H. Geaney, a shareholder and co-chair of Capehart Scatchard's Workers' Compensation department, began an email newsletter entitled Currents in Workers’ Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates.

Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers. The manual is distributed by the New Jersey Institute for Continuing Legal Education (NJICLE). He also authored an ADA and FMLA manual as distributed by NJICLE. If you are interested in purchasing the manual, please contact NJICLE at 732-214-8500 or visit their website at www.njicle.com.

Mr. Geaney represents employers in the defense of workers’ compensation, ADA and FMLA matters. He is a Fellow of the College of Workers’ Compensation Lawyers of the American Bar Association and is certified by the Supreme Court of New Jersey as a workers’ compensation law attorney. He is one of two firm representatives to the National Workers’ Compensation Defense Network. He has served on the Executive Committee of Capehart Scatchard for over ten (10) years.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School. He has been named a “Super Lawyer” by his peers and Law and Politics. He serves as Vice President of the Friends of MEND, the fundraising arm of a local charitable organization devoted to promoting affordable housing.

Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Trenton, New Jersey. The firm represents employers and businesses in a wide variety of areas, including workers’ compensation, civil litigation, labor, environmental, business, estates and governmental affairs.


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