3rd Circuit Expands FMLA Protection

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An interesting case came out of the 3rd Circuit in October this year, expanding employee protections under the FMLA. To remind everyone, the FMLA (Family Medical Leave Act), passed in 1993 by President Bill Clinton, provides 12 weeks of unpaid, job-protected leave to eligible employees for a serious health condition of the employee or a family member, or for the birth, adoption or foster-case placement of a child. The FMLA was amended this year to include added protections for service members and to clarify notice requirements.

But back to the case…the case is Erdman v. Nationwide Ins. Co. In the case, the employee, Brenda Erdman, was terminated for alleged poor performance after requesting FMLA leave to care for her daughter, who had Down’s Syndrome. Erdman claimed that the termination was in retaliation for requesting leave.

There were several important issues decided by the court. First, the court said that firing an employee for requesting leave under the FMLA can constitute both retaliation and interference with rights under the statute. Second, the court held that it isn’t required that an employee actually take the leave in order to be protected against retaliation. In the case, the employer said that Erdman could not be protected under the retaliation provision of the FMLA because she had been terminated before the leave actually began. The court rejected this argument, noting that it would be an absurd result if an employer could avoid liability completely simply by firing an employee who has made a FMLA request just by doing so before the leave began. Finally, the court ruled that an employer’s constructive knowledge of hours worked by an employee can be used when calculating whether an employee worked the requisite 1,250 in the past 12 months in order to be an ‘eligible’ employee under the FMLA.


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