[This posting is
for informational purposes and should not be construed or interpreted as either
legal advice on any matter or as in any way creating an attorney/client
relationship]
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.”
These,
the words of Judge Thomas Hardiman, writing for the court in Erdman v. Nationwide
Insurance Co. In Erdman, the court held that any employer may not
fire an employee for making a valid request for rights under the Family and
Medical Leave Act.
Under the FMLA, covered employers
must grant an eligible employee up to a total of 12 workweeks of unpaid leave
during any 12-month period for one or more of the following reasons:
- for the birth and care of the newborn child of
the employee;
- for placement with the employee of a son or
daughter for adoption or foster care;
- to care for an immediate family member
(spouse, child or parent) with a serious health condition; or
- to take medical leave when the employee is
unable to work because of a serious health condition.
The
facts in Erdman are fairly straightforward. The plaintiff requested that
her employer afford her FMLA leave to take care of her sick daughter.
Subsequent to the plaintiff making the FMLA request, and prior to the plaintiff
actually going out on FMLA leave, the company terminated her employment for
what it termed “behavioral problems.” Plaintiff subsequently filed suit
alleging that the employer’s reason for terminating her employment was
pretextual for her having requested FMLA leave. That is, the plaintiff
contended that her employer had engaged in FMLA retaliation and had further
violated the FMLA’s interference provision, which makes it "unlawful for
any employer to interfere with, restrain, or deny the exercise of or the
attempt to exercise" any right provided by the FMLA.
Finding
that the plaintiff had not accumulated enough hours to be eligible for FMLA
leave, the district court granted summary judgment to the employer.
On
appeal, the court determined, as an initial matter, that the plaintiff was
eligible for FMLA leave. The court next reaffirmed that it had never before
condoned or otherwise sanctioned employer retaliation against an employee who
requests FMLA leave. Thereafter, the Erdman court reasoned that
requiring an employee to first take leave as a prerequisite to establishing a
claim for FMLA interference would “perversely allow a employer to limit an FMLA
plaintiff’s theories of recovery by presumptively firing her.”
Here,
because the employer fired the plaintiff before her FMLA leave commenced, the
plaintiff had the right to argue that her termination was in response to her
having requested FMLA leave. Accordingly, the 3rd U.S. Circuit Court
of Appeals reversed the lower court’s grant of summary judgment to the
employer.
The
lesson here is that an employer should not take any action against an eligible
employee merely because she requests FMLA leave. However, it is worth noting
that the Erdman court did leave for another day the issue of whether
eligibility for FMLA leave is required in order to prevail on a claim for FMLA
retaliation.
For
that answer, stay tuned…
Eric B. Meyer is a
member of the Labor and Employment Group at Dilworth Paxson LLP. Readers can contact him via e-mail and follow him on Twitter.
Comments