Fact or fiction: The FMLA may protect pre-eligible employees

Fact or Fiction?That’s right folks. It’s time for another edition of “Fact or Fiction” a/k/a “Quick Answers to Quick Questions” a/k/a QATQQ f/k/a “I don’t feel like writing a long blog post.”

Let’s do an FMLA quiz. We know that an FMLA-eligible employee must check three boxes:

  1. Work at a location that employs 50 employees within 75 miles;
  2. Has at least 1,250 hours of service with such employer during the previous 12-month period; and
  3. Must be employed for at least 12 months by the employer.

So, does the FMLA protect from retaliation an employee who requests leave before the one-year anniversary of employment?In Sine v. Rockhill Mennonite Home (opinion here), the plaintiff alleged that, while she requested FMLA leave before her one-year work anniversary, the leave was scheduled to commence after her one-year work anniversary. Therefore, the FMLA should protect her.

Indeed, the FMLA regulations provide that “[t]he determination of whether an employee meets the hours of service requirement and has been employed by the employer for a total of at least 12 months must be made as of the date the FMLA leave is to start.”

And then the court gilded the lily:

Moreover, it has been recognized in this district and in other circuits that “the FMLA regulatory scheme must necessarily protect pre-eligible employees . . . who put their employers on notice of a post-eligibility leave request.”…[W]hen an employee, before becoming eligible for FMLA leave, puts an employer on notice of his or her intent to take FMLA leave after he or she becomes eligible, the FMLA must be read to allow the employee to make a charge against the employer for an adverse employment action.

Thus, if an employer terminates the employee for requesting FMLA leave under these circumstances, it’s staring at a nasty retaliation claim.

The court denied the employer’s motion to dismiss and the case rolls on.

The answer to today’s question is FACT.

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