Court Rules that FMLA Notice Can Be Given Before You Are Entitled to FMLA Leave

This could be your problem:  You know you are shortly going to need to go out on FMLA leave, but you have not been employed or worked 1,250 hours in the previous year.

Wrongful termination pregnancy FMLAThis was the conundrum that faced Kathryn Pereda.  She was pregnant and knew she would need to take FMLA leave after the birth of her child.  She began working for Brookdale, a senior assisted living facility in Florida, in October, 2008.  In June, 2009, Pereda gave notice to her employer that she was pregnant and would need FMLA leave beginning in November, 2009.  In June she was not eligible for FMLA leave but when she gave birth in November, she would be eligible.  In September, 2009, Brookdate terminated Pereda.

Pereda  filed a lawsuit in Federal Court, claiming that Brookdale  violated the Family and Medical Leave Act when it: 1) interfered with her right to take FMLA leave  and 2) retaliated against her by terminating her for exercising her right to take FMLA leave.

The question the Court asked was whether an employee who is not yet eligible for leave (because she had not worked for Brookdale for the requisite 12 months could advance an FMLA interference claim.  For the Court, the answer was clear: Pereda had a valid legal claim.   In arriving at the conclusion the Court made reference to one of the regulations supporting the FMLA law.  It provides that:

“The determination of whether an employee has worked for the employer for at least 1,250 hours in the past 12 months and has been employed by the employer for a total of at least 12 months must be made as of the date the FMLA leave is to start.” 29 C.F.R. ¬ß 825.110(d).

Thus, FMLA leave is calculated from the date the employee expects to take leave, not from the date leave is requested.¬† ¬†¬†If an employer terminates the employee ‚Äúin order to avoid having to accommodate that employee with rightful FMLA leave rights once that employee becomes eligible,‚ÄĚ the employee could advance an FMLA interference claim.¬† Pereda v. Brookdale Senior Living Communities, Inc.

Pereda was also successful in her retaliation claim.  After she gave her notice, Brookdale harassed and disciplined her for attending prenatal appointments and put her on an unnecessary performance improvement plan.

If you are planning on taking FMLA leave, do not hesitate to give you notice prior to the date you intend to take leave.  It is unclear from the opinion how much time in advance you can give notice and still be protected but it must be reasonable.

For more information about FMLA issues or other employment matters please contact The Law Office of Constantine W. Papas, P.A.

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