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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

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 his…

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Bruce L. Atkins
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Bruce L. Atkins is the Senior Managing Partner at Deutsch Atkins & Kleinfeldt P.C., a prominent plaintiff employment law firm in the tri-state area. Mr. Atkins believes employees’ rights should be aggressively pursued when they’ve been wrongfully dealt with by their employers. He brings this philosophy to his practice when considering each case and its…

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Adam J. Kleinfeldt

Adam J. Kleinfeldt joined Deutsch Atkins & Kleinfeldt, P.C. in March of 2015.  He primarily represents individuals in employment litigation 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 his clients, including a $525,000 jury verdict in a sexual…

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Debra M. McGarvey

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), the…

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Carly Skarbnik Meredith

Carly Skarbnik Meredith, Esq. is a Partner at the firm. Carly has focused her career exclusively in the field of employment law. She has a plethora of experience representing both employees and employers with their employment issues, needs, and concerns. She believes representing both employees and employers has made her an extremely well-rounded client advocate.…


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