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DTCI: FMLA Update

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gessling By Joshua B. Gessling

Finding that the 7th Circuit Court of Appeals had not previously addressed the issue, the U.S. District Court for the Northern District of Indiana recently held that a pre-eligibility request for post-eligibility leave may be protected under the Family and Medical Leave Act.

In Morkoetter v. Sonoco Products Co., No. 3:11-CV-485 (N.D. Ind. Mar. 29, 2013), the employee alleged that he informed his employer of his disabilities and plans to take time away from work after he became eligible for leave under the FMLA. The employee alleged that after informing his employer of the need for post-eligibility leave, but approximately five weeks before reaching his eligibility date, the employer terminated his employment. The employee claimed the employer fired him because of his pre-eligibility request for post-eligibility leave in violation of the FMLA. The employer moved to dismiss. Because the employee had not worked for the employer for 12 months and, consequently, was not yet eligible for FMLA leave, the employer argued the employee’s termination did not constitute retaliation.

Relying heavily upon the rationale in Pereda v. Brookdale Senior Living Cmty., Inc., 666 F.3d 1269 (11th Cir. 2012), the court denied the employer’s motion to dismiss the FMLA claim and held that termination based upon a pre-eligibility request for post-eligibility leave may constitute a viable retaliation claim under the FMLA. Since the FMLA requires that employees provide employers with notice of foreseeable future leave, the court reasoned that the aims of the FMLA would be compromised if employees were required to provide notice of future leave while remaining exposed to retaliation for complying with the law.

Given this growing trend, employers should be mindful that certain pre-eligibility requests may be protected under the FMLA, reassess internal policies in light of this development, and administer leave requests accordingly.•

Mr. Gessling is an associate at Kahn Dees Donovan & Kahn LLP in Evansville. The opinions expressed in this article are those of the author.
 

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  1. Your article is a good intro the recent amendments to Fed.R.Civ.P. For a much longer - though not necessarily better -- summary, counsel might want to read THE CHIEF UMPIRE IS CHANGING THE STRIKE ZONE, which I co-authored and which was just published in the January issue of THE VERDICT (the monthly publication of the Indiana Trial Lawyers Association).

  2. Thank you, John Smith, for pointing out a needed correction. The article has been revised.

  3. The "National institute for Justice" is an agency for the Dept of Justice. That is not the law firm you are talking about in this article. The "institute for justice" is a public interest law firm. http://ij.org/ thanks for interesting article however

  4. I would like to try to find a lawyer as soon possible I've had my money stolen off of my bank card driver pressed charges and I try to get the information they need it and a Social Security board is just give me a hold up a run around for no reason and now it think it might be too late cuz its been over a year I believe and I can't get the right information they need because they keep giving me the runaroundwhat should I do about that

  5. It is wonderful that Indiana DOC is making some truly admirable and positive changes. People with serious mental illness, intellectual disability or developmental disability will benefit from these changes. It will be much better if people can get some help and resources that promote their health and growth than if they suffer alone. If people experience positive growth or healing of their health issues, they may be less likely to do the things that caused them to come to prison in the first place. This will be of benefit for everyone. I am also so happy that Indiana DOC added correctional personnel and mental health staffing. These are tough issues to work with. There should be adequate staffing in prisons so correctional officers and other staff are able to do the kind of work they really want to do-helping people grow and change-rather than just trying to manage chaos. Correctional officers and other staff deserve this. It would be great to see increased mental health services and services for people with intellectual or developmental disabilities in the community so that fewer people will have to receive help and support in prisons. Community services would like be less expensive, inherently less demeaning and just a whole lot better for everyone.

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