A recent decision from the United States District Court for the District of South Carolina clarified that an employee may make an FMLA retaliation claim based on employment actions occurring before the employee is eligible to take FMLA leave. In Gleaton v. Monumental Life Ins. Co., the plaintiff alleged she became seriously ill in October 2007 and told her employer she would need FMLA beginning in November 2007. The plaintiff had not worked for the employer for 12 months as of October 2007 and was not, therefore, eligible to take FMLA leave. She would have been eligible to take FMLA leave beginning in November 2007.

After the plaintiff’s request for FMLA leave, the employer terminated her employment on October 26 2007. The plaintiff sued, alleging, among other things, FMLA retaliation. The employer moved to dismiss the FMLA retaliation claim, arguing the plaintiff had no protection under FMLA because she was not an eligible employee at the time of her termination.

Federal courts have taken varying approaches to this type of claim. Some courts have decided an employee may not pursue an FMLA retaliation claim until he or she is eligible to take FMLA leave. Other courts focus on the FMLA requirement that an employee give 30 days’ advance notice of the need for leave, ruling it would be illogical to require employees to provide advance notice of the need for leave, which would expose them to retaliation, and then provide no remedy for retaliation that might occur. The court in this case ruled that an employee may bring a retaliation claim under FMLA if the employee was terminated before becoming eligible to take FMLA leave, but after giving notice of an intent to use FMLA leave once eligible for it. This was a case of first impression in the Fourth Circuit, the federal court circuit that includes North Carolina, South Carolina, Virginia, West Virginia, and Maryland, and it establishes the rule other courts in this circuit may follow when evaluating similar cases.

Employers should now be aware that it is not enough to analyze whether an employee is currently eligible to take FMLA leave when making an employment decision about an employee who has requested FMLA leave to begin sometime in the future. Employers who rely solely on the employee’s lack of FMLA eligibility to defend a termination decision or other adverse employment action risk the substantial penalties available to plaintiffs under the FMLA’s anti-retaliation provisions.