Employees' Pre-Eligibility FMLA Rights

Right to be Free from Manipulation

One pre-eligibility right that is perhaps obvious is the right to be free from the employer manipulating the size of a worksite or the number of work hours available to an employee in order to avoid employee eligibility. Such manipulation is considered “interference with” the exercise of an employee's FMLA rights. Thus, for example, reducing a pregnant employee's hours in order to ensure that she does not meet the 1,250-hour eligibility threshold would give rise to an actionable interference claim.

General Notice Concerning the FMLA

Another basic right that applies to almost every employee is the right to receive notice from the employer concerning general information about the FMLA. Such notice must be provided in two ways. First, regardless of whether an employer has any employees eligible for leave, every employer covered by the FMLA is required to post on its premises a general notice explaining the provisions of the FMLA and the procedures for filing complaints with the Department of Labor (DOL). This poster must be written in “large enough” and “fully legible” text and be “prominently” displayed in “conspicuous” places where it can be seen by both employees and applicants. See 29 C.F.R. ' 825.300(a)(1-2).

Second, any FMLA-covered employer that has even one eligible employee must also provide the general notice to all employees either: 1) by including the notice in an employee handbook or other written guidance to employees concerning employee benefits and leave rights (if such written materials exist); or 2) by providing the notice to every new employee upon hire. Importantly, while an employer may choose to develop its own general summary of FMLA rights rather than using the sample notice provided by the DOL (i.e., the DOL poster), the notice must include, at a minimum, all of the information contained in the DOL's sample notice. This means, for example, that the employer's FMLA “policy” in its handbook should include not only general information about the FMLA, but also must include the information contained in the DOL's sample notice concerning the prohibition on FMLA interference and discrimination and the procedures for filing a DOL complaint. See 29 C.F.R. ' 825.300(a)(3-4).

Eligibility, Rights and Responsibilities, Designation

An employee who requests FMLA leave ' even if that employee is not yet eligible ' also is entitled to specific notices from the employer. The first such notice is the “eligibility notice.” Whenever an employer is put on notice that an employee may need leave for an FMLA-qualifying reason (whether such notice comes through a direct request by the employee or through some other means), the employer typically has just five business days to notify the employee of the employee's eligibility to take FMLA leave.

In determining eligibility, it is critical that the correct time period is used: Eligibility is to be determined as of when the FMLA leave is to begin, not when the leave is requested. See 29 C.F.R. ” 825.110(d), 825.300(b)(1). This is important because, given an employee's obligation to provide at least 30 days' advance notice before foreseeable FMLA leave is to begin, see 29 C.F.R. ' 825.302(a), an employer may receive notice from an employee regarding needed FMLA leave before an employee becomes eligible for such leave. Thus, despite the employee's ineligibility at the time of the request, the employer still is under an obligation to provide the eligibility notice within five business days of that request.

Further, whenever an employer provides an eligibility notice to an employee, the employer also must provide that employee with a “rights and responsibilities” notice that details “the specific expectations and obligations of the employee” and explains “any consequences of a failure to meet these obligations.” See 29 C.F.R. ' 825.300(c). The regulations discuss the “details” that must be provided in this notice, along with other information that may be included. See 29 C.F.R. ' 825.300(c)(1)-(3).

Finally, after receiving sufficient information to determine that an employee (who is or will be eligible for leave at the time the leave is to commence) needs leave for an
FMLA-qualifying reason, the employer must provide the employee with a “designation notice” that informs the employee whether the leave will be designated and counted as FMLA leave. Again, the employer typically has just five business days to provide this notice. See 29 C.F.R. ' 825.300(d)(1). Thus, depending on the timing of the employee's request for leave and the employee's submission of any required documentation supporting the leave (such as a certification), the designation notice may be due to the employee even before the employee is eligible for the leave.

Right to Accurate Information Concerning Eligibility

Some courts have found that, where an employer fails to comply with the FMLA's notice obligations, such as by failing to give accurate information to an employee about whether the employee is eligible for leave, the doctrine of equitable estoppel can be applied to prevent an employer from challenging an employee's FMLA eligibility. In Dobrowski v. Jay Dee Contractors, Inc., 571 F.3d 551, 554-57 (6th Cir. 2009), for example, the Sixth U.S. Circuit Court of Appeals concluded that the doctrine of equitable estoppel may apply where an employer initially (but inaccurately) informs the employee that he or she is eligible for leave and the employee detrimentally relies on that information.

One district court has even suggested that an employee who is not eligible for FMLA leave may have an implied contractual right to such leave. See Brown v. McGill, No. 08-453, 2010 WL 1779035 (D.N.M. Mar. 8, 2010). In McGill, the employer notified the employee of his FMLA leave rights and granted his requests for leave, even though the employee did not work at a facility at which the employer employed 50 or more employees within 75 miles. Even though the employee was not eligible for FMLA leave, the court concluded that the employer's conduct provided sufficient evidence to raise a factual question as to the existence of an implied contract under state law to provide the employee with FMLA rights. 2010 WL 1779035, at *62-63.

Based on these and similar court rulings, it is imperative for employers to provide accurate information to employees concerning their eligibility for FMLA leave.

Protection for Pre-Eligibility Requests for Post-Eligibility Leave

The Eleventh U.S. Circuit Court of Appeals recently addressed what had been an issue of first impression for that court: whether an employee's pre-eligibility request for post-eligibility leave is protected by the FMLA. See Pereda v. Brookdale Senior Living Communities, Inc., No. 10-14723, 2012 WL 43271 (11th Cir. Jan. 10, 2012). In that case, the employee, who had not yet worked for the employer for 12 months, notified the employer that she would be requesting FMLA leave after the birth of her child, which was to occur after she met the 12-months-of-employment threshold for eligibility. The employee alleged that she was thereafter harassed and her performance criticized, and her employment was terminated before the child was born. See Id., 2012 WL 43271, at *1.

The lower court held that the employer could not have interfered with the employee's FMLA rights because she was not entitled to FMLA leave at the time she requested it. The court further held that because she was not eligible for leave, the employee could not have engaged in protected activity under the FMLA and, therefore, the employer could not have retaliated against her. See Id., 2012 WL 43271, at *2.

The Eleventh Circuit rejected both of these conclusions, holding instead that the FMLA protects a pre-eligibility request for post-eligibility leave. See Id. The court reasoned that to hold otherwise would create “a loophole ' whereby an employer has total freedom to terminate an employee before she can ever become eligible. Such a situation is contrary to the basic concept of the FMLA.” Id. Critical to the court's ruling was the FMLA regulation requiring employees to provide notice in advance of future leave. The court believed that it would be “illogical” to require an employee to disclose a need for leave, while exposing the employee to retaliation or interference by the employer for which there would be no remedy. See Id., 2012 WL 43271, at *3.

The court rejected the employer's assertion that FMLA coverage would be expanded by its ruling, stating that its holding was simply that “a pre-eligible employee has a cause of action [for FMLA interference] if an employer terminates her in order to avoid having to accommodate that employee with rightful FMLA leave rights once that employee becomes eligible.” See Id., 2012 WL 43271, at *4. As for the employee's retaliation claim, the court similarly ruled that “a pre-eligible request for post-eligible leave is protected activity” and, therefore, can support a retaliation claim if the employee is subjected to retaliation for making the pre-eligibility request. See Id., 2012 WL 43271, at *5.

In sum, under the Eleventh Circuit's holding in Pereda, an employee does not need to be currently eligible for leave in order to be protected from either interference or retaliation under the FMLA.

Protection from Pre-FMLA Leave Being Counted Against the FMLA Entitlement

Employers often have policies that permit employees to take some form of leave other than FMLA leave. In the event that an employer permits an employee to take such a leave before the employee becomes eligible for FMLA leave, the employer cannot retroactively designate such pre-eligibility leave as FMLA leave once the employee becomes eligible, even if the leave was for what would have been an FMLA-qualifying reason. Instead, only the portion of a leave taken for an FMLA-qualifying reason after the employee meets the eligibility requirements can be counted against the employee's 12-week FMLA entitlement. See 29 C.F.R. ' 825.110(d).

No Inducement to Waive Prospective Rights

An employee cannot waive, and the employer cannot induce the employee to waive, prospective rights under the FMLA. See 29 C.F.R. ' 825.220(d). Thus, for example, an employer cannot induce a pre-eligible employee to waive the right to take leave once the employee becomes eligible in exchange for some other employer-provided benefit. See Id.

Protection for Filing a DOL Charge or Participating in
FMLA-Related Proceedings

The FMLA regulations provide further protection for any person ' regardless of whether the individual is an employee, let alone an eligible employee ' who has filed a charge with the DOL or instituted or provided information/testimony in a proceeding relating to a right under the FMLA. See 29 C.F.R. ' 825.220(a)(3). Such a person is protected from being either discharged or “in any other way discriminat[ed] against because of taking one of the foregoing actions.” See Id.

As the foregoing discussion demonstrates, employees who are not yet eligible to take FMLA leave are nonetheless entitled to a variety of FMLA rights and protections. An employer who violates the FMLA or its regulations may be found liable to an employee for damages that may include compensation and benefits lost as a result of the violation, for actual monetary losses incurred as a result of the violation, and for equitable or other relief such as employment, reinstatement, or promotion, depending on the harm suffered. See 29 C.F.R. ' 825.220(b). For these reasons, employers need to be aware of the full panoply of protections available to all of their employees, including pre-eligible employees.

Christy Phanthavong is Of Counsel in Bryan Cave's Chicago office. She practices labor and employment litigation in state and federal courts and before administrative agencies. William (Bill) Wortel, a member of this newsletter's Board of Editors, is a Partner in the firm's Chicago office and has represented management at the administrative level, in state and federal courts, and in the U.S. Court of Appeals.

The Family and Medical Leave Act (FMLA) is perhaps the most difficult federal employment statute with which to comply. Even well-intentioned employers unknowingly violate the FMLA's technical notice requirements. Moreover, while the majority of employees take leave for appropriate, FMLA-qualifying reasons, employers sometimes express frustration that a minority of employees are abusing their FMLA rights by providing inaccurate information to them and/or their physicians in order to obtain FMLA leave to which they are not entitled. In fact, some employers have gone so far as hiring private investigators to follow their employees while on FMLA leave, and in a number of instances, have discovered that an employee is engaging in activities that violate his/her medical restrictions or otherwise conflict with the information that the employee provided to the employer and/or the employee's physician. (Employers considering this type of surveillance should first consult with an attorney, as some employees have successfully argued that the surveillance itself constitutes actionable retaliation under the FMLA.) For these and other legitimate reasons, employers tend to strictly construe the FMLA's eligibility requirements and, when leave eligibility rights have not been satisfied, fail to afford employees some of the often-overlooked, pre-eligibility rights to which they are entitled under the FMLA.

Eligibility Requirements

Not all employers are covered by the FMLA, and not all employees working for an FMLA-covered employer are entitled to take FMLA leave. An employee is not “eligible” to take FMLA leave unless and until he or she meets established eligibility criteria relating to months of employment (at least 12 months employed by the employer), hours worked (at least 1,250 hours worked during the 12 months before the leave is to begin), and number of employees at the employee's worksite (at least 50 employees employed within 75 miles of the worksite). See 29 C.F.R. ' 825.110(a). However, even before an employee satisfies the eligibility criteria, the employee is entitled to certain FMLA rights and protections as discussed herein.

Right to be Free from Manipulation

One pre-eligibility right that is perhaps obvious is the right to be free from the employer manipulating the size of a worksite or the number of work hours available to an employee in order to avoid employee eligibility. Such manipulation is considered “interference with” the exercise of an employee's FMLA rights. Thus, for example, reducing a pregnant employee's hours in order to ensure that she does not meet the 1,250-hour eligibility threshold would give rise to an actionable interference claim.

General Notice Concerning the FMLA

Another basic right that applies to almost every employee is the right to receive notice from the employer concerning general information about the FMLA. Such notice must be provided in two ways. First, regardless of whether an employer has any employees eligible for leave, every employer covered by the FMLA is required to post on its premises a general notice explaining the provisions of the FMLA and the procedures for filing complaints with the Department of Labor (DOL). This poster must be written in “large enough” and “fully legible” text and be “prominently” displayed in “conspicuous” places where it can be seen by both employees and applicants. See 29 C.F.R. ' 825.300(a)(1-2).

Second, any FMLA-covered employer that has even one eligible employee must also provide the general notice to all employees either: 1) by including the notice in an employee handbook or other written guidance to employees concerning employee benefits and leave rights (if such written materials exist); or 2) by providing the notice to every new employee upon hire. Importantly, while an employer may choose to develop its own general summary of FMLA rights rather than using the sample notice provided by the DOL (i.e., the DOL poster), the notice must include, at a minimum, all of the information contained in the DOL's sample notice. This means, for example, that the employer's FMLA “policy” in its handbook should include not only general information about the FMLA, but also must include the information contained in the DOL's sample notice concerning the prohibition on FMLA interference and discrimination and the procedures for filing a DOL complaint. See 29 C.F.R. ' 825.300(a)(3-4).

Eligibility, Rights and Responsibilities, Designation

An employee who requests FMLA leave ' even if that employee is not yet eligible ' also is entitled to specific notices from the employer. The first such notice is the “eligibility notice.” Whenever an employer is put on notice that an employee may need leave for an FMLA-qualifying reason (whether such notice comes through a direct request by the employee or through some other means), the employer typically has just five business days to notify the employee of the employee's eligibility to take FMLA leave.

In determining eligibility, it is critical that the correct time period is used: Eligibility is to be determined as of when the FMLA leave is to begin, not when the leave is requested. See 29 C.F.R. ” 825.110(d), 825.300(b)(1). This is important because, given an employee's obligation to provide at least 30 days' advance notice before foreseeable FMLA leave is to begin, see 29 C.F.R. ' 825.302(a), an employer may receive notice from an employee regarding needed FMLA leave before an employee becomes eligible for such leave. Thus, despite the employee's ineligibility at the time of the request, the employer still is under an obligation to provide the eligibility notice within five business days of that request.

Further, whenever an employer provides an eligibility notice to an employee, the employer also must provide that employee with a “rights and responsibilities” notice that details “the specific expectations and obligations of the employee” and explains “any consequences of a failure to meet these obligations.” See 29 C.F.R. ' 825.300(c). The regulations discuss the “details” that must be provided in this notice, along with other information that may be included. See 29 C.F.R. ' 825.300(c)(1)-(3).

Finally, after receiving sufficient information to determine that an employee (who is or will be eligible for leave at the time the leave is to commence) needs leave for an
FMLA-qualifying reason, the employer must provide the employee with a “designation notice” that informs the employee whether the leave will be designated and counted as FMLA leave. Again, the employer typically has just five business days to provide this notice. See 29 C.F.R. ' 825.300(d)(1). Thus, depending on the timing of the employee's request for leave and the employee's submission of any required documentation supporting the leave (such as a certification), the designation notice may be due to the employee even before the employee is eligible for the leave.

Right to Accurate Information Concerning Eligibility

Some courts have found that, where an employer fails to comply with the FMLA's notice obligations, such as by failing to give accurate information to an employee about whether the employee is eligible for leave, the doctrine of equitable estoppel can be applied to prevent an employer from challenging an employee's FMLA eligibility. In Dobrowski v. Jay Dee Contractors, Inc. , 571 F.3d 551, 554-57 (6th Cir. 2009), for example, the Sixth U.S. Circuit Court of Appeals concluded that the doctrine of equitable estoppel may apply where an employer initially (but inaccurately) informs the employee that he or she is eligible for leave and the employee detrimentally relies on that information.

One district court has even suggested that an employee who is not eligible for FMLA leave may have an implied contractual right to such leave. See Brown v. McGill, No. 08-453, 2010 WL 1779035 (D.N.M. Mar. 8, 2010). In McGill, the employer notified the employee of his FMLA leave rights and granted his requests for leave, even though the employee did not work at a facility at which the employer employed 50 or more employees within 75 miles. Even though the employee was not eligible for FMLA leave, the court concluded that the employer's conduct provided sufficient evidence to raise a factual question as to the existence of an implied contract under state law to provide the employee with FMLA rights. 2010 WL 1779035, at *62-63.

Based on these and similar court rulings, it is imperative for employers to provide accurate information to employees concerning their eligibility for FMLA leave.

Protection for Pre-Eligibility Requests for Post-Eligibility Leave

The Eleventh U.S. Circuit Court of Appeals recently addressed what had been an issue of first impression for that court: whether an employee's pre-eligibility request for post-eligibility leave is protected by the FMLA. See Pereda v. Brookdale Senior Living Communities, Inc., No. 10-14723, 2012 WL 43271 (11th Cir. Jan. 10, 2012). In that case, the employee, who had not yet worked for the employer for 12 months, notified the employer that she would be requesting FMLA leave after the birth of her child, which was to occur after she met the 12-months-of-employment threshold for eligibility. The employee alleged that she was thereafter harassed and her performance criticized, and her employment was terminated before the child was born. See Id., 2012 WL 43271, at *1.

The lower court held that the employer could not have interfered with the employee's FMLA rights because she was not entitled to FMLA leave at the time she requested it. The court further held that because she was not eligible for leave, the employee could not have engaged in protected activity under the FMLA and, therefore, the employer could not have retaliated against her. See Id., 2012 WL 43271, at *2.

The Eleventh Circuit rejected both of these conclusions, holding instead that the FMLA protects a pre-eligibility request for post-eligibility leave. See Id. The court reasoned that to hold otherwise would create “a loophole ' whereby an employer has total freedom to terminate an employee before she can ever become eligible. Such a situation is contrary to the basic concept of the FMLA.” Id. Critical to the court's ruling was the FMLA regulation requiring employees to provide notice in advance of future leave. The court believed that it would be “illogical” to require an employee to disclose a need for leave, while exposing the employee to retaliation or interference by the employer for which there would be no remedy. See Id., 2012 WL 43271, at *3.

The court rejected the employer's assertion that FMLA coverage would be expanded by its ruling, stating that its holding was simply that “a pre-eligible employee has a cause of action [for FMLA interference] if an employer terminates her in order to avoid having to accommodate that employee with rightful FMLA leave rights once that employee becomes eligible.” See Id., 2012 WL 43271, at *4. As for the employee's retaliation claim, the court similarly ruled that “a pre-eligible request for post-eligible leave is protected activity” and, therefore, can support a retaliation claim if the employee is subjected to retaliation for making the pre-eligibility request. See Id., 2012 WL 43271, at *5.

In sum, under the Eleventh Circuit's holding in Pereda, an employee does not need to be currently eligible for leave in order to be protected from either interference or retaliation under the FMLA.

Protection from Pre-FMLA Leave Being Counted Against the FMLA Entitlement

Employers often have policies that permit employees to take some form of leave other than FMLA leave. In the event that an employer permits an employee to take such a leave before the employee becomes eligible for FMLA leave, the employer cannot retroactively designate such pre-eligibility leave as FMLA leave once the employee becomes eligible, even if the leave was for what would have been an FMLA-qualifying reason. Instead, only the portion of a leave taken for an FMLA-qualifying reason after the employee meets the eligibility requirements can be counted against the employee's 12-week FMLA entitlement. See 29 C.F.R. ' 825.110(d).

No Inducement to Waive Prospective Rights

An employee cannot waive, and the employer cannot induce the employee to waive, prospective rights under the FMLA. See 29 C.F.R. ' 825.220(d). Thus, for example, an employer cannot induce a pre-eligible employee to waive the right to take leave once the employee becomes eligible in exchange for some other employer-provided benefit. See Id.

Protection for Filing a DOL Charge or Participating in
FMLA-Related Proceedings

The FMLA regulations provide further protection for any person ' regardless of whether the individual is an employee, let alone an eligible employee ' who has filed a charge with the DOL or instituted or provided information/testimony in a proceeding relating to a right under the FMLA. See 29 C.F.R. ' 825.220(a)(3). Such a person is protected from being either discharged or “in any other way discriminat[ed] against because of taking one of the foregoing actions.” See Id.

As the foregoing discussion demonstrates, employees who are not yet eligible to take FMLA leave are nonetheless entitled to a variety of FMLA rights and protections. An employer who violates the FMLA or its regulations may be found liable to an employee for damages that may include compensation and benefits lost as a result of the violation, for actual monetary losses incurred as a result of the violation, and for equitable or other relief such as employment, reinstatement, or promotion, depending on the harm suffered. See 29 C.F.R. ' 825.220(b). For these reasons, employers need to be aware of the full panoply of protections available to all of their employees, including pre-eligible employees.

Christy Phanthavong is Of Counsel in Bryan Cave's Chicago office. She practices labor and employment litigation in state and federal courts and before administrative agencies. William (Bill) Wortel, a member of this newsletter's Board of Editors, is a Partner in the firm's Chicago office and has represented management at the administrative level, in state and federal courts, and in the U.S. Court of Appeals.