The federal appellate court that covers Florida, the Eleventh Circuit, recently decided what lawyers call a case a first impression – a legal issue that has not been previously ruled on by the court. The case is Pereda v. Brookdale Senior Living Communities, Inc., and the issue was whether an employee who is not yet eligible for leave under the Family and Medical Leave Act (FMLA) can sue an employer who retaliates against and terminates her before she can exercise her rights under the FMLA. The Eleventh Circuit ruled that, yes, the employee is protected against interference and retaliation based on a pre-eligibility request for post-eligibility leave.
The facts of the case are as follows. Pereda began working for the employer on October 5, 2008. In June 2009, she advised the employer that she was pregnant and would need leave under the FMLA after the birth of her child on or about November 30, 2009. Pereda said that after she disclosed her pregnancy and informed the company of her need for leave they began treating her unfairly – placing her on a performance improvement plan and writing her up for missing work related to her pregnancy. The company fired Pereda in September 2009, before she had worked for the company for twelve months, a requirement for FMLA leave. She sued for violation of her rights under the FMLA, claiming both interference with her rights and retaliation for trying to exercise her rights under the FMLA. The employer filed a motion to dismiss, and the trial court dismissed the claim, finding that Pereda had no claim because she was not entitled to the FMLA leave at the time she had requested it. Pereda appealed and the Eleventh Circuit ruled in her favor, finding that a claim does exist. (At this procedural stage, the only issue is whether a claim exists, not whether there is any merit to the claim.)
Although Pereda was not eligible for FMLA leave at the time she requested it, she would have been entitled to the leave at the time she gave birth and her requested leave began. The appellate court reasoned that, because the FMLA requires the employee to provide advance notice of the need for leave (at least 30 days’ notice when the need for leave is foreseeable), the employee is protected from interference prior to the occurrence of the triggering event for the leave, such as the birth of a child. Otherwise, an employer could use the advance notice against the “newer” employee and terminate the employee before he or she qualifies for leave under the one year/1250 hour service requirement. The court held that a pre-eligible employee has a cause of action if an employer terminates her to avoid having to accommodate the employee with FMLA leave once the employee becomes eligible. Similarly, the court found that the pre-eligible request for post-eligible leave is protected activity and that the employer cannot retaliate against the employee even though, at the time of the request for leave and the time of termination, the employee was not yet eligible for or entitled to FMLA leave.
The decision in Pereda clarifies the rights of employees not yet eligible for FMLA but who have requested leave to start once they are eligible. Florida employers covered by the FMLA should exercise care when taking adverse action against an employee who has requested FMLA leave even if the employee is not yet eligible for leave.