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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. Such things are no more elections than those in the late, unlamented Soviet Union.

  2. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  3. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  4. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  5. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

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