FMLA Retaliation Claims Still Viable without Commenced Leave

September 24, 2009 ( - 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 involvingBrenda 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 byU.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 .