March 02, 2012 Top Story

Pre-Eligibility Protection under FMLA

Employee's advance notice of potential maternity leave triggered FMLA rights

Jannis E. Goodnow

In a case of first impression, the U.S. Court of Appeals for the Eleventh Circuit recently held that the Family Medical Leave Act (FMLA) protects an employee’s pre-eligibility request for post-eligibility maternity leave. As a result, in Pereda v. Brookdale Senior Living Communities, Inc., the circuit court reversed the district court’s dismissal of Pereda’s complaint against her former employer for FMLA interference and FMLA retaliation.

Pereda began working for Brookdale in October 2008. She notified her employer in June 2009 that she would need FMLA leave following the anticipated birth of her baby in November 2009, by which time she would be eligible for FMLA leave.

After she was fired in September 2009, she sued for both FMLA interference and FMLA retaliation. She alleged that Brookdale began harassing her and denigrating her performance after she advised of her pregnancy.

An employee does not become eligible to take FMLA leave until she has worked 12 months and 1250 hours for the employer, and then only after a triggering event, such as the birth of a child. FMLA makes it illegal “for an employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter.”

The U.S. District Court for the Southern District of Florida dismissed Pereda’s complaint, ruling that because she was not eligible for FMLA leave either when she requested it or when she was terminated. As such, she was not entitled to FMLA’s protections against interference and retaliation.

FMLA’s Notice Requirement Triggers Employee’s Protection

On appeal, Pereda argued that if the district court’s decision were to stand, employees would cease to provide their employers with adequate notice of an impending leave in fear of retaliation. The Eleventh Circuit agreed with Pereda, reasoning that “[a]s the statute requires [at least 30 days’] 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.” This interpretation serves FMLA’s 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.”

The court reasoned that “[w]ithout protecting against pre-eligibility interference, a loophole is created whereby an employer has total freedom to terminate an employee before she can ever become eligible. Such a situation is contrary to the basic concept of the FMLA.”

When Does “Pre-Eligibility” Protection Attach?

Brookdale argued that accepting Pereda’s argument would place employers on a slippery slope on which an employee could invoke FMLA protection on her first day of employment, or at any point prior to reaching the requisite work tenure, simply by announcing a future intent to take FMLA leave. The court dismissed this argument, citing an Illinois district court case for the proposition that “the scenario in which an employee works eight hours and then requests foreseeable FMLA leave beginning in 364 days . . . is a non-starter.”

The Eleventh Circuit stressed that its ruling does not expand FMLA coverage to a new class of employees. Rather, the court “is simply holding that a pre-eligible employee has a cause of action if an employer terminates her in order to avoid having to accommodate that employee with rightful FMLA leave rights once that employee becomes eligible.” The court noted that employers are still free to fire employees any time for legitimate reasons.

Confusing Standard for Employers

This decision “could very well be confusing” for employers, predicts Brian Koji, Tampa, vice-chair of the ABA Section of Litigation’s Employment and Labor Relations Law Committee. “Employers are certainly going to have to be more vigilant after a pre-eligible employee gives notice of a need for future leave,” he cautions. While it may be a challenge, employers must undertake “a reasonable case-by-case analysis” as to whether a pre-eligible employee has FMLA protection, agrees P. Arley Harrell, Seattle, cochair of the Section of Litigation’s Employment and Labor Relations Law Committee.

Expansion of Individual Rights or Sensible Protection for Working Mothers?

The Pereda decision is “pretty consistent with trends we’ve been seeing in the courts toward expansion of individual rights,” states Harrell. “Will [this trend] swing back for competitive reasons in this global economy? That is the challenge for the legislature and the courts,” he says.

“This case is all about the protection of working new mothers,” says Andrew S. Pollis, Cleveland, cochair of the Section’s Civil Rights Litigation Committee. “To construe FMLA any other way would work an inequity on one of the most common triggering events FMLA was intended to protect,” he says.

Unlike the district court, “[t]he circuit court recognized that FMLA is not a codified Catch-22,” explains Hayley Gorenberg, New York City, cochair of the Section’s Civil Rights Litigation Committee. Rather, the Eleventh Circuit made “a sound and important interpretation of a sensibly written statute.” She adds, “I’m always pleased when law and policy sensibly align.”

This is a well-reasoned but narrow ruling that will not open the floodgates to new suits, according to Harrell. Nevertheless, suggests Pollis, “there may be a groundswell of support for other employees who find themselves in this situation, leading more high-powered lawyers to get involved in other jurisdictions.”

Jannis E. Goodnow is an associate editor for Litigation News.

Keywords: FMLA, pre-eligibility, Eleventh Circuit

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