FMLA: Worker may be protected even before she’s eligible

Please, no more twists to the Family and Medical Leave Act!

But, in fact, the twists keep coming. Here’s a new one: We all know new employees aren’t covered by the FMLA until they’ve worked the required 1,250 hours in the past 12 months. But one court recently ruled that pre-eligible employees may be protected in certain cases. Exactly what are they?

Case in Point: After eight months on the job, Kathryn Pereda told her boss she was pregnant and planned to take FMLA leave when the child was born, five months later. By then, Pereda would have been eligible for FMLA leave.

But Pereda didn’t make it five months. The company fired her three months after her FMLA request—and one month shy of the 12-month FMLA threshold. The company cited poor performance. But Pereda said she was a “top employee” before making the FMLA request. She sued, saying the company re­­taliated against her for her FMLA request.

The company argued that the lawsuit should be dismissed because Pereda hadn’t yet earned FMLA eligibility at the time of the termination. But the court disagreed, saying that by requesting FMLA leave for the future (when she’d be eligible), Pereda was “engaged in a protected activity,” and the company could not take adverse action against her.

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To rule otherwise, the court said, would provide a “loophole” whereby pre-eligible employees who give notice of future FMLA leave could be terminated without remedy.

“Such a situation is contrary to the basic concept of the FMLA,” the court wrote. “Our decision today simply means that pre-eligible discussion of post-eligible FMLA leave is protected activity under the FMLA.” (Pereda v. Brookdale Senior Living, 11th Cir., 2012)

3 lessons learned … without going to court

1. Note the nature of the request. If an employee requests leave, regard­­less of the employee’s FMLA-eligibility status, it may trigger FMLA protection.

2. Don’t place employees under a microscope. In this case, Pereda alleged that she was placed under the “performance microscope” and constantly written up after her request. That will smell fishy to a jury.

3. Buckle up. This is a new court interpretation to the FMLA. While the court asserted that this decision does not expand FMLA coverage to a “new class of employees” it does put a new light on how we must treat non-­eligible employees.


Author: Mindy Chapman is an attorney and presi­dent of Mindy Chapman & Associates LLC. She is a master trainer and co-author of the book, Case Dismissed! Taking Your ­Har­assment Prevention Train­ing to Trial. Sign up to receive her blog postings at