In the first case of its kind, the U.S. Court of Appeals for the 11th Circuit,
which includes Georgia, Alabama and Florida, considered what actions are
considered protected by the Family and Medical Leave Act. Specifically in
Pereda v. Brookdale Senior Living Cmtys. Inc., the appellate court reviewed whether an employee who made a “pre-eligibility”
request under the Family and Medical Leave Act is protected from retaliation.
In order to be eligible for protection under the FMLA, an employee must
work 1,250 hours within the previous 12 months and experience a triggering
event, such as the birth of a child.
If you have questions concerning whether you may be eligible to take leave
under the FMLA, it is a good idea to consult with a knowledgeable Atlanta
employment discrimination attorney. An attorney skilled in practicing
family and medical leave law can answer your FMLA questions and provide
crucial guidance concerning your next steps.
Here, a female employee – Kathyrn Pereda – was not yet eligible
for leave when she first brought it up, but would be eligible at the time
she gave birth to her child. Based on the “advanced notice”
requirements of the Act, Pereda notified her employer of her pregnancy
and her wish to take leave after the birth of her child. After she informed
her employer of her pregnancy, Pereda’s supervisors began to harass
her. She was placed on a performance improvement plan with “unattainable
goals” and was ultimately fired.
Pereda asserted she was retaliated against in violation of the FMLA. Her
employer responded that because she was not eligible for FMLA leave when
she made the request, her claim for retaliation was not valid. Although
the lower court agreed, the 11th Circuit reversed, finding that a “pre-eligibility
discussion of post-eligible FMLA is protected activity.”
The court determined that the employee was protected finding that “Because
the FMLA requires advance notice of a leave request, to find that an employee
is not protected against pre-eligibility interference would create a loophole…[A]n
employer has total freedom to terminate an employee before she can ever
become eligible…Such a situation is contrary to the basic concept
of the FMLA.”
As a result, Pereda was entitled to bring her case for retaliation based
on her request for leave.
If you have questions concerning leave requests, or believe you have been
discriminated at work, please
contact the dedicated Georgia employment discrimination lawyers at Buckley Beal
LLP for an immediate confidential consultation.