FMLA Retaliation Claims Still Viable without Commenced
Leave
September 24, 2009 (PLANSPONSOR.com) - An employee
does not have to actually begin taking time off under the
Family and Medical Leave Act (FMLA) to claim illegal employer
retaliation under the law.
That was the holding of the 3
rd
U.S. Circuit Court of Appeals in a case involving
Brenda L. Erdman's lawsuit against Nationwide
charging the employer fired her after requesting FMLA
leave but before she was able to take the time.
U.S. Circuit Judge Thomas Hardiman, writing for the
court in
Erdman v. Nationwide Insurance Co.,
asserted that permitting employers to discharge FMLA
applicants was legally not acceptable. Lawyers for
Nationwide had insisted that the issue had been
previously settled by a 2004 case,
which held that the first requirement of a
retaliation claim is that the worker "took an FMLA
leave."
"It would be patently absurd if an employer
who wished to punish an employee for taking FMLA leave
could avoid liability simply by firing the employee
before the leave begins," Hardiman claimed.
"[W]e interpret the requirement that an employee
'take' FMLA leave to connote invocation of FMLA
rights, not actual commencement of leave."
Hardiman contended that rulings from lower court
judges supported the 3
rd
Circuit's latest finding.
The appellate panel also overturned another trial
court ruling by
U.S. District Judge Christopher C. Conner of the
Middle District of Pennsylvania throwing out Erdman's
suit because she failed to meet a key qualification
provided by the law - that she work at least 1,250 hours
in the previous 12 months.
However, the appellate jurists disagreed, saying a
jury needed to consider whether the company had properly
factored in hours Erdman worked from home in determining
whether she could meet the 1,250-hour threshold.
The 3rd Circuit opinion is available
here
.
Fred Schneyer
editors@plansponsor.com