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New hire requests FMLA? Beware retaliation

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in FMLA Guidelines,Human Resources

Employees who can foresee the need for FMLA leave are supposed to let their employers know 30 days in advance. The idea is to help employers manage staffing needs by giving them a heads-up.

Because only employees who have worked 1,250 hours in the past year and have worked for their employer for at least one year are eligible for FMLA leave (provided they work for a covered employer and have a serious health condition or other covered need), some requests naturally come in before the employee is eligible.

That raises a question: Is it protected activity that can’t be punished if an employee who is not yet eligible asks to take FMLA leave? Put another way, can an employer fire an employee who requests FMLA leave before the employee is actually eligible?

A federal court has said, “No!” That’s illegal retaliation.

Recent case: Liquor distributor employee Angella became pregnant and told her boss she would need FMLA and other medical leave before, during and after the birth of her child. At the time of the request, she wasn’t technically eligible since she hadn’t worked for the company for at least a year yet. She was fired before she gave birth or hit the one-year milestone.

Angella sued, alleging FMLA retaliation.

The company argued she wasn’t eligible at the time she requested leave and therefore hadn’t engaged in protected activity.

The court ruled in Angella’s favor. It reasoned that the law would be a sham if employers could simply fire employees who would soon need FMLA leave (and would be otherwise eligible for leave) and who by law are required to report their need for leave before they become eligible. That would punish the employee for doing the right thing. (Williams v. Crown Liquors, No. 11-Civ-61341, SD FL, 2012)

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