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Employees can’t cry ‘retaliation’ if they’re not eligible for leave

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

Issue: Employees can sue for FMLA retaliation only if they've put in the minimum hours to become eligible for FMLA leave.

Benefit: Less risk of first-year employees winning FMLA-retaliation suits.

Action: Don't settle FMLA-retaliation lawsuits from ineligible employees; such suits likely will be tossed out of court.

One provision in the Family and Medical Leave Act (FMLA) says it's illegal to retaliate against employees for taking qualified leave. But, as a recent court ruling makes clear, employees retain those anti-retaliation rights only if they're actually eligible to take FMLA leave. That holds true even if the employee suffers an "adverse action" for taking the leave, such as being fired or demoted.

The law: 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 told her principal that she wanted to take maternity leave starting on her due date, the following Aug. 2.

After the school board decided not to renew her contract, Walker filed an FMLA lawsuit, arguing that her termination came in retaliation for her leave request. But the court threw out her lawsuit, saying that because she wasn't eligible for FMLA, Walker wouldn't have been employed for the required 12 months when her requested FMLA leave began, she wasn't protected under the law's anti-retaliation provision. (Walker v. Elmore Cty. Bd. of Education, No. 02-16509, 11th Cir., 2004)

Final note: The court left unanswered whether the law protects a pre-eligibility request for post-eligibility leave.

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