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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. Some are above the law in Indiana. Some lined up with Lodges have controlled power in the state since the 1920s when the Klan ruled Indiana. Consider the comments at this post and note the international h.q. in Indianapolis. http://www.theindianalawyer.com/human-trafficking-rising-in-indiana/PARAMS/article/42468. Brave journalists need to take this child torturing, above the law and antimarriage cult on just like The Globe courageously took on Cardinal Law. Are there any brave Hoosier journalists?

  2. I am nearing 66 years old..... I have no interest in contacting anyone. All I need to have is a nationality....a REAL Birthday...... the place U was born...... my soul will never be at peace. I have lived my life without identity.... if anyone can help me please contact me.

  3. This is the dissent discussed in the comment below. See comments on that story for an amazing discussion of likely judicial corruption of some kind, the rejection of the rule of law at the very least. http://www.theindianalawyer.com/justices-deny-transfer-to-child-custody-case/PARAMS/article/42774#comment

  4. That means much to me, thank you. My own communion, to which I came in my 30's from a protestant evangelical background, refuses to so affirm me, the Bishop's courtiers all saying, when it matters, that they defer to the state, and trust that the state would not be wrong as to me. (LIttle did I know that is the most common modernist catholic position on the state -- at least when the state acts consistent with the philosophy of the democrat party). I asked my RCC pastor to stand with me before the Examiners after they demanded that I disavow God's law on the record .... he refused, saying the Bishop would not allow it. I filed all of my file in the open in federal court so the Bishop's men could see what had been done ... they refused to look. (But the 7th Cir and federal judge Theresa Springmann gave me the honor of admission after so reading, even though ISC had denied me, rendering me a very rare bird). Such affirmation from a fellow believer as you have done here has been rare for me, and that dearth of solidarity, and the economic pain visited upon my wife and five children, have been the hardest part of the struggle. They did indeed banish me, for life, and so, in substance did the the Diocese, which treated me like a pariah, but thanks to this ezine ... and this is simply amazing to me .... because of this ezine I am not silenced. This ezine allowing us to speak to the corruption that the former chief "justice" left behind, yet embedded in his systems when he retired ... the openness to discuss that corruption (like that revealed in the recent whistleblowing dissent by courageous Justice David and fresh breath of air Chief Justice Rush,) is a great example of the First Amendment at work. I will not be silenced as long as this tree falling in the wood can be heard. The Hoosier Judiciary has deep seated problems, generational corruption, ideological corruption. Many cases demonstrate this. It must be spotlighted. The corrupted system has no hold on me now, none. I have survived their best shots. It is now my time to not be silent. To the Glory of God, and for the good of man's law. (It almost always works that way as to the true law, as I explained the bar examiners -- who refused to follow even their own statutory law and violated core organic law when banishing me for life -- actually revealing themselves to be lawless.)

  5. to answer your questions, you would still be practicing law and its very sad because we need lawyers like you to stand up for the little guy who have no voice. You probably were a threat to them and they didnt know how to handle the truth and did not want anyone to "rock the boat" so instead of allowing you to keep praticing they banished you, silenced you , the cowards that they are.

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