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Administrative Law Task Force

The Administrative Task Force plays a critical role in keeping our OSHA practice current and vibrant.  We follow developments daily and we work together to analyze the impact that proposed and actual changes will have on the law in general and specifically on our client’s industries. Employers today face an unprecedented range of workplace safety and OSHA legal issues as government increases worker safety and health regulation and demands meticulous reviews by its OSHA inspection force.

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Court Expands FMLA Coverage Beyond The Definition Of "Eligible Employee"

Many large employers no doubt thought they could ignore the Family and Medical Leave Act (FMLA) for any employee who had yet to reach his anniversary date.  The Eleventh Circuit torpedoed those assumptions earlier this month.

In Pereda v. Brookdale Senior Living Communities, Inc., the question before the appeals court was whether a first-year employee not yet eligible for FMLA leave had job protection when requesting leave that would begin after her eligibility date (i.e., her anniversary date).  The appeals court responded in the positive, providing protection from termination to someone who did not meet the statute’s definition of “eligible employee.”  The Eleventh Circuit, which covers Florida, Georgia, and Alabama, became the nation’s first to rule on this issue. 

The plaintiff in Pereda had become employed in October 2008 and had announced in June 2009 that she was pregnant and would be requesting FMLA leave after the birth of her child scheduled for late November 2009.  Under the FMLA, an “eligible employee” is one who has been employed for at least 12 months and has completed at least 1,250 of service during the previous 12-month period.  The plaintiff was not an eligible employee when she announced her intention in June 2009 to take FMLA leave at a later date.  Nor was she an eligible employee when the employer fired her in September 2009.

But the appeals court spun the definition of “eligible employee” and held that because the employee would have been an eligible employee at the time she actually would have taken leave, she was protected from discharge under the FMLA.  The court wrote that holding otherwise “would violate the purposes for which the FMLA was enacted,” and would create “a loophole . . . whereby an employer has total freedom to terminate an employee before she can ever become eligible.”

Perhaps the court’s most persuasive reasoning came when it cited a section of the FMLA which requires “employees” -- not necessarily “eligible” employees -- to provide employers with at least 30 days’ notice before taking leave that is foreseeable based on an expected birth.  The court concluded that a different result in the case would leave some employees in a “trap” between complying with the notice requirement (but subjecting themselves to risk of retaliatory termination), or waiting for their anniversary dates to arrive (but rendering them non-compliant with the notice requirement).

This expanded definition of “eligible employee” creates a host of unanswered questions about when certain employees are protected under the FMLA.  To wit:

  • What if an 11-month employee says during Thanksgiving week that he is “leaning toward” having surgery on his trick knee after the New Year, likely keeping him on FMLA leave for a month or so?
  • What if a just-hired employee says in January of Year 1 that she and her husband have applied for adoption of a Russian child, a lengthy process that will, if they are approved (a questionable proposition), necessitate their going overseas for a couple of months in the middle of Year 2.  What if the individual had shared this during the pre-hire process?
  • What if an 11-month employee shares that she and her sister are deciding which of them will take three months off from work next year to care for their mother, who is scheduled at that time to move out of a nursing home?  What if the employer elects to terminate the employee the following week, and the mother dies the week after that?

Until further guidance emerges from the other courts of appeal, the prudent course for employers may be to not take adverse action against these types of employees, unless strong evidence unrelated to the FMLA supports the action.

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