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Can an Employer Deny FMLA Leave to an Employee Who is Not Yet Eligible?

Do you, as an employer, have to give FMLA (Family and Medical Leave Act) Leave to an employee who is not yet eligible? The answer may seem simple enough—no. However, after a January 2012 ruling, the answer is not that obvious.

Kathryn Pereda began working for a senior living facility in Florida in October 2008. In June 2009, she notified her employer that she was pregnant and would need FMLA leave upon the birth of her child in November 2009. However, in September 2009, she was terminated.

When she first gave notice of her pregnancy, Pereda was not yet eligible for FMLA leave. By the time she would need the leave, however, she would be eligible. She was fired one month shy of her eligibility, the company citing “poor performance.”

Pereda sued for retaliation (exercising her right to FMLA leave) and for interference (denying her right to FMLA leave). The court had to answer this question:  Can an employee who is not yet eligible for leave (as Pereda did not work for her employer for a full 12 months) advance an FMLA interference claim?

The company argued the lawsuit should be dismissed because she wasn’t yet eligible for FMLA at the time of her termination. A lower court sided with the employer, but an appellate court later reversed that ruling, saying that by requesting future FMLA leave, Pereda engaged in a “protected activity” and her employer could not take adverse action against her.

To determine your rights and obtain compensation for violation of your FMLA rights, you need the help of an experienced employment lawyer.  Deutsch Atkins, P.C. is one of New Jersey’s largest and most highly regarded employee rights law firms with the expertise you need if your FMLA rights have been violated.  If you have been terminated in violation of your FMLA rights, we can protect your rights and maximize your compensation.

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Neil H. Deutsch
Senior Partner

About Neil H. Deutsch has been practicing law for over 35 years and is known as a skilled negotiator in employment and discrimination law. He believes in a bottom-line approach of risk analysis and cost effectiveness for his clients. "Case evaluation is something we take seriously," says Mr. Deutsch who seeks top net dollar for…

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Bruce L. Atkins
Senior Partner

About Bruce L. Atkins is regarded as one of New Jersey's premiere practitioners of employment and civil litigation. Mr. Atkins has also been included in the Thomson Reuters list of New Jersey Super Lawyers* in Employment Litigation since 2005. Mr. Atkins believes employees have rights that should be aggressively pursued when an employer has wrongfully dealt…

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Adam J. Kleinfeldt
Partner

About Adam J. Kleinfeldt joined Deutsch Atkins, P.C. in March of 2015.  He primarily represents individuals in employment litigations such as discrimination, retaliation, and whistle blowing matters.  He has extensive experience in all phases of the litigation process. Adam has obtained significant results for some of his clients, including a $525,000 jury verdict in a…

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Robert J. Pantina
Attorney

About Robert J. Pantina joined the firm in 2018. Mr. Pantina received his B.A. from Rider University in 2008. He received his J.D. from the Elisabeth Haub School of Law at Pace University in 2017. While in law school, Mr. Pantina interned for the Hon. Bonnie J. Mizdol, Assignment Judge of the Superior Court of…

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Diane Englander Peyser
Attorney

About Diane Englander Peyser joined Deutsch Atkins, PC in September 2018 where she represents employees in wrongful termination, retaliation, harassment, and discrimination matters. Prior to joining Deutsch Atkins, PC, Diane represented clients in all aspects of employment law on behalf of employees involving unemployment appeals, claims of sexual harassment, LGBT discrimination, disability discrimination, FMLA, New…

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