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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. Good riddance to this dangerous activist judge

  2. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  3. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  4. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

  5. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

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