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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 & Kleinfeldt, 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
Retired

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 premier practitioners of employment and civil litigation. He has been selected to the New Jersey Super Lawyers prestigious list every year since 2005.  This honor, bestowed upon a recipient by the votes of his peers, is a powerful nod to the skill Mr. Atkins…

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Adam J. Kleinfeldt
Partner

About Adam J. Kleinfeldt joined Deutsch Atkins & Kleinfeldt, 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…

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Diane Englander Peyser
Attorney

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

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Debra M. McGarvey
Attorney

About Debra M. McGarvey joined Deutsch Atkins & Kleinfeldt, P.C. in December 2019. She has extensive experience defending employees and employers in state and federal court in employment litigation matters. She has represented clients on various issues arising out of the New Jersey Law Against Discrimination (NJLAD), the New Jersey Conscientious Employee Protection Act (CEPA),…

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