Earlier this year the Eleventh Circuit held that an employee who was not yet eligible for FMLA leave could still be protected by the law. The plaintiff in Pereda v. Brookdale Senior Living Communities, Inc. told her employer she would need leave following the birth of her child. She was not yet eligible for the leave (nor did she need it, as she had not yet given birth). Almost immediately, the employer began a campaign of harassment that culminated in the plaintiff’s termination. When she sued, the lower court held she could not invoke the protections of the FMLA, as she was not technically covered by the law at the time of harassment and termination. Not so fast, according to the Eleventh Circuit, which held a pre-eligibility request for a post-eligibility leave was protected activity.
So what’s the lesson for employers? Pay attention to the spirit and not just the letter of the law. Thinking you can squeak by an FMLA claim based on a technical reading of the law is the kind of thinking that usually lands you in court. And let’s not forget about the cost on morale and employee relations.