Pre-Eligibility Requests For Leave May Give Rise To Claims Of Retaliation in Pereda v. Brookdale Senior Living Cmtys. Inc.

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 Bala Wilson Mew LLP for an immediate confidential case evaluation.