Pre-Eligibility Protection Under FMLA: A Talent Management Issue

Friday, February 24, 2012

Many employees are protected under the Family Medical Leave Act of 1993 (FMLA). The Act allows for employees who meet certain eligibility requirements to take unpaid leave for a variety of medical reasons for themselves and certain family members. Central to an employee’s edibility is at least 12 months of employment encompassing a minimum of 1,250 paid work hours within a 12-month period previous to the leave’s application. It would therefore seem that employment less than 12 months of employment and fewer than 1,250 hours prior to the leave application would render the employee ineligible for FMLA. Not so say the United States Court of Appeals for the Eleventh Circuit

In a January 10, 2012 ruling, a three judge panel of the United States Court of Appeals, Eleventh Circuit stated that Kathryn Pereda had proved that her former employer, Brookdale Senior Living Communities, Inc had both illegally inferred with and retailed against her by terminating her employment after she informed Brookdale of her pregnancy and her intention to request FMLA. Pereda’s former employer augured that since she had not been employed 12 months prior to the FMLA request and had not worked at least 1,250 hours, she was not eligible for FMLA and thus not eligible for protection under the law.

On the issue of interference, the Court cited “the employee shall provide the employer with not less than 30 days' notice, before the date the leave is to begin, [and] of the employee's intention to take leave." 29 U.S.C. § 2612(e)(1). The Court concluded that this provision was actually “meant as protection for employers to provide them with sufficient notice of extended absences.” Reviewing the employee’s claim of retaliation, the panel stated that “FMLA should be executed ‘in a manner that accommodates the legitimate interest of employers,’ 29 U.S.C. 2601(b)(3), without abusing the interests of employees.” Finally, the Court reversed the decision and sent the case back to the district court for further proceedings.

How is this a talent management issue?

One, you can bet that Pereda’s fellow employees at Brookdale are watching for the outcome of her situation and their perception of their employer will be colored by its final disposition. In an industry heavily populated by females and low rates of retention, many current and future employees will see “There but for the grace of G-d, go I.”

Two, the local and corporate management of Brookdale have been distracted from the core activities of running their business; which includes managing hundreds of employees. Spanning a period from June 2009 until January 2012; and possibility beyond; Brookdale’s community goodwill may well suffer as may its employee productivity.

Lastly, Brookdale will have spent and may spend even more thousands of dollars and hundreds of hours in what could have been an avoidable situation had it been handled differently. This includes pulling local managers and even employees away from their duties to testify, provide depositions, and possible attend pre-trial hearings and meetings.