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Florida Employers Take Note....Eleventh Circuit Holds Pre-Eligibility Notice of Post-Eligibility Leave Is Protected Activity Under FMLA

In a case of first impression, the Eleventh Circuit Court of Appeals (the “Court”) has held that the Family Medical Leave Act (“FMLA”) protects employees’ pre-eligibility requests for post-eligibility leave. The case, Pereda v. Brookdale Senior Living Communities, Inc., ---- F. 3d -----, 2012 WL 43271 (11th Cir. Jan. 10, 2012), should provide guidance to Florida employers dealing with the question of whether an employee is engaging in “protected activity” under the FMLA.

In June 2009, Kathryn Pereda informed her employer that she was pregnant and would be requesting FMLA leave after the birth of her baby on or about November 30, 2009. Pereda alleged that, after communicating her plans to take FMLA leave, Brookdale began harassing her, disparaged her job performance and placed her on a performance improvement plan with unattainable goals. Pereda alleged that the harassment caused her stress and complications with her pregnancy. After taking medical leave to treat these complications, Brookdale terminated her employment.

Pereda brought suit against Brookdale in the Southern District of Florida, alleging interference and retaliation under the FMLA. Brookdale moved to dismiss the complaint for failure to state a claim under FRCP 12(b)(6). The district court dismissed the complaint, holding that 1) Brookdale could not have interfered with Pereda’s FMLA rights because Pereda was not entitled to FMLA leave at the time she requested it, and 2) Brookdale did not retaliate against Pereda because she did not engage in “protected activity” under the FMLA. Pereda appealed her case to the Court. At issue was whether a pre-eligibility request for post-eligibility leave is a “protected activity” under the FMLA.

The Court reversed the decision and remanded the case back to the district court. The Court held that, because the FMLA requires notice in advance of future leave, employees are protected from interference prior to the occurrence of a triggering event, such as the birth of a child. Noting that it would be illogical to subject an employee to interference and retaliation for complying with the notice requirement, the Court held that the FMLA must necessarily protect pre-eligible employees who put their employers on notice of their post-eligibility leave requests. Therefore, Pereda engaged in “protected activity” under the FMLA when she informed Brookdale of her anticipated maternity leave, and she could state a claim of interference of her FMLA rights. In addition, because Pereda alleged she suffered harassment as a result of engaging in “protected activity,” the Court held that she could state a claim of retaliation under the FMLA.

You can read a copy of the Court’s opinion here.

Categories: Labor and EmploymentLitigationFederal LawFederal Courts
Tags: Public EmployeesEmployment AgreementsPublic EmployersCollective BargainingJamie A. ColeEdward G. GuedesMichael S. PopokBrett J. SchneiderJoseph H. SerotaFort Lauderdale Business Litigation AttorneysFort Lauderdale Business Litigation LawyersSouth Florida Business Dispute Litigation AttorneysSouth Florida Business Dispute Litigation LawyersMatthew H. MandelFort Lauderdale LitigatorsMiami LitigatorsSouth Florida LitigatorsFort Lauderdale Employment Law AttorneysMiami Employment Law AttorneysSouth Florida Employment Law AttorneysFort Lauderdale Labor Law AttorneysMiami Labor Law AttorneysSouth Florida Labor Law AttorneysEleventh Circuit Court of AppealsFamily Medical Leave ActProtected ActivityFlorida Commercial Litigation LawyerFlorida Employment AttorneysFlorida Labor LawyersFlorida Litigation AttorneysFort Lauderdale Civil Litigation AttorneysFort Lauderdale Commercial Litigation AttorneysFort Lauderdale Commercial Litigation AttorneysFort Lauderdale Employment LawyerFort Lauderdale Employment LawyerMiami Commercial Litigation AttorneyMiami Employment AttorneyMiami Employment AttorneyMiami Labor LawyerMiami Litigation AttorneySouth Florida Employment Lawyers
Author(s): Brett J. Schneider & Brooke P. Dolara