Employees can’t claim retaliation if they’re not FMLA-eligible

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in Employment Law,Firing,FMLA Guidelines,Human Resources,Maternity Leave Laws

The Family and Medical Leave Act (FMLA) protects employees against retaliation for taking FMLA leave. But a recent court decision makes clear that employees retain these rights only if they're actually eligible to take FMLA leave. That holds true even if the employee suffers an "adverse action," such as a firing or demotion.

To be eligible for FMLA leave, employees must work for the same employer for at least 12 months and clock at least 1,250 hours during the 12 months leading up to the leave.

Recent case: Brandi Walker began her teaching job on Aug. 9. When she became pregnant a couple months later, Walker informally told her principal that she wanted to take maternity leave starting Aug. 2 of the next year, her due date.

After the school board decided not to renew her contract, Walker sued, claiming the action was in retaliation for her leave request. But the court threw out Walker's lawsuit, saying her leave request wasn't protected by the FMLA's anti-retaliation provision.

Reason: She hadn't been on staff for the required 12 months when she requested the leave, nor would she be FMLA-eligible by the time of her expected due date. (Walker v. Elmore Cty Bd. of Education, No. 02-16509, 11th Cir., 2004)

Final note: The court made clear that the FMLA doesn't protect employees who take leave at a time when they're not eligible. But the court left unanswered whether the law protects a pre-eligibility request for post-eligibility leave.

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