Eleventh Circuit Rules That The FMLA Protects Pre-Eligibility Requests For Post-Eligibility Leave

In Pereda v. Brookdale Senior Living Communities, Inc., 2012 WL 43271 (11th Cir. Jan. 10, 2012), the Court of Appeals for the Eleventh Circuit recently concluded that a pre-eligibility request for post-eligibility maternity leave is protected activity under the Family and Medical Leave Act (FMLA). According to the court, because employees may be required to give advance notice of leave before they have met the FMLA's eligibility requirements, the FMLA regulatory scheme must protect such pre-eligible em-ployees when they put their employers on notice of their intent to take FMLA leave once they become eligible.

Kathryn Pereda (Pereda) began working for a senior living facility operated by Brookdale Senior Living Communities, Inc. (Brookdale) on Oct. 5, 2008. In June 2009 — less than 12 months after she was hired — Pereda informed Brookdale that she was expecting a baby and would be requesting leave after the birth of her child. Pereda's baby was due on November 30, 2009, following her one year anniversary of employment. According to Pereda, after learning about her pregnancy, Brookdale began harassing her and placed her on a performance improvement plan with unattainable goals. Brookdale also began writing Pereda up for absences related to her pre-natal care. In early September 2009, Pereda took time off after her physician instructed that she needed bed rest. She was fired several days later, after only 11 months of employment and one month shy of the 12-month FMLA eligibility threshold.

Pereda subsequently filed a complaint against Brookdale asserting claims for interference and retaliation under the FMLA. The district court dismissed Pereda's claims, finding that Brookdale could not have interfered with Pereda's FMLA rights because she was not entitled to FMLA leave at the time that she requested it. It further concluded that Pereda did not engage in protected activity for which Brookdale could have retaliated against her because she was not eligible for FMLA leave at any time during her employment. The Court of Appeals for the Eleventh Circuit disagreed.

The court acknowledged that to be eligible for leave under the FMLA, an employee must have been employed for 12 months, worked the requisite 1,250 hours within the previous 12 months, and experienced a triggering event, such as the birth of a child. Although it was undisputed that Pereda was not yet eligible for FMLA leave at the time of her discharge, it was also undisputed that she would have been eligible for leave by the time she gave birth to her baby and commenced her requested leave. The fact that Pereda would have been eligible for FMLA leave at the time of her anticipated absence distinguished her case from those cited by Brookdale and made this an issue of first impression for the court.

After examining the FMLA's regulatory scheme, and its employee notice obligations in particu-lar, the court concluded that "[w]ithout protect-ing against pre-eligibility interference, a loophole is created whereby an employer has total freedom to terminate an employee before she can ever become eligible." The FMLA requires that an employee give not less than 30 days advance notice of foreseeable leave. See 29 U.S.C. § 2612(e)(1). According to the court, this notice period was meant as protection for employers to provide them with sufficient notice of extended absences. "It would be illogical to interpret the notice requirement in a way that requires employees to disclose requests for leave that would expose them to retaliation, or interfe-rence, for which they have no remedy." Without a remedy, the court continued, "the advanced notice requirement becomes a trap for newer employees and extends to employers a significant exemption from liability.... Such an interpretation is inconsistent with FMLA and the purpose of the Act."

Because the court concluded that the FMLA protects a pre-eligibility request for post-eligibility leave from interference, it likewise found that Pereda could state a cause of action for FMLA retaliation. Remanding the case to the district court, the court noted that the question remained as to whether there was "colorable evidence that Brookdale did in fact retaliate against plaintiff."

In reaching its decision, the court noted the dearth of federal appeals court decisions on the precise issue faced by the court, noting that the question was left open by an earlier Eleventh Circuit opinion in the case of Walker v. Elmore Cnty. Board of Education, 379 F.3d 1249 (11th Cir. 2004). The Court proceeded to approvingly cite to several district court opinions on point, including Beffert v. Pennsylvania Department of Public Welfare, 2005 WL 906362 (E.D.Pa. Apr. 18, 2005), in which an Eastern District of Pennsylvania judge likewise con-cluded that an employee could proceed with her FMLA retaliation claim where she had been employed for less than 12 months but requested leave to begin more than one year after her employment commenced.

Pereda is an important case for employers to heed. Employers should assume that employees who are not yet eligible for leave will be protected by the FMLA if they report a future need for leave to begin when they otherwise would have met the Act's eligibility criteria. Accordingly, employers should consider the potential legal risks before taking any adverse action against pre-eligible employees who have requested post-eligibility FMLA leave.

NLRB's General Counsel Again Weighs in on Social Media in the Workplace

On January 24, 2011, the General Counsel of the National Labor Relations Board (NLRB or the Board) released a second report discussing social media cases decided under Section 7 of the National Labor Relations Act (NLRA). Pursuant to the NLRA, employees (whether unionized or not) have a right to "engage in other concerted activities for the purpose of collective bargaining or other mutual aid and protection," (called a "Section 7 right") and it is an unfair labor practice for an employer to interfere with, restrain or coerce an employee in the exercise of this right. Posts on social media sites, even if the posts are made from home computers during non-working hours, can constitute such concerted activity in some circumstances. As discussed at Dechert's October 2011 Labor Seminar, the General Counsel's first report on this issue, which was released on August 18, 2011, described 14 cases in which it considered whether employer policies and practices regarding employees' use of social media ran afoul of Section 7. In this latest report, the General Counsel has offered opinions on an additional 14 cases. Although not the definitive opinion of a court or the NLRB, the General Counsel's comments are instructive regarding circumstances that may give rise to a Section 7 violation.

The General Counsel approved social media policies that "prohibited the use of social media to post or display comments about co-workers or supervisors or the Employer that are vulgar, obscene, threatening, intimidating, harassing, or a violation of the Employer's work place policies against discrimination, harassment, or hostility" on account of a protected characteristic.

However, the policies with ambiguous adjectives in social media policies fared worse. The General Counsel believes that social media policies using broad and/or vague adjectives to describe what employees may or may not do violate the NLRA because such policies may be construed to limit employees' Section 7 rights, and thereby chill employees exercise of those rights. Specifically, the General Counsel objected to policies prohibiting making "disparaging comments about the company," prohibiting "discriminatory, defamatory, or harassing web entries," permitting only "appropriate" and "professional" discussions about the terms or conditions of employment, prohibiting "insubordinate, disrespectful, or inappropriate conduct or conversa-tions," and prohibiting "unprofessional communication that could negatively impact the employer."

This new report also suggests that context matters. For example, the General Counsel commented that a policy prohibiting employees from using or disclosing confi-dential or proprietary information was lawful when promulgated by a drug store chain, because in the context of pharmaceutical sales the policy would not be construed by employees to apply to Section 7 rights. This finding is striking, because an employer operating clinical testing laboratories put forth a similar policy, prohibiting disclosure or communicating information of confidential, sensitive, or non-public information concerning the company on or through company property, which the General Counsel characterized as overbroad pursuant to the NLRA.

Similar to the prior report, the General Counsel reported that employers violated the NLRA in several cases by disciplining or terminating employees who engaged in concerted activity through their speech on social media sites. For example, the General Counsel noted that an employee's comments that an employer behaved badly when demoting her, and the subsequent Facebook conversation it incited, "clearly" constituted concerted activity; thus, her termination as a result of this conver-sation was unlawful.

However, the General Counsel determined that em-ployee terminations due to inappropriate comments on social media sites in some cases were lawful because the employees' comments in those circumstances were not protected concerted activity. In two cases, the General Counsel opined that employees' comments...