“I thought my employees had to actually use their FMLA leave before they could sue me…”

If you’re an employer who believes their employees must first “use” their FMLA leave in order to advance an actionable claim…think again. In Erdman v Nationwide Ins Co, a case that broadens the scope of the FMLA, the Third Circuit held that employees invoke their FMLA rights, not at the time their leave begins, but when they request the leave, which means that requests alone can form the basis of an interference or reprisal claim, even if the leave is not yet taken.

The employee, Brenda Erdman, initially requested vacation time to prepare her child with Down Syndrome for school. When her vacation bid was denied, she then requested FMLA leave for that same period. Approximately one month after requesting FMLA leave, but before she took the leave, Erdman was discharged for purported behavioral problems. Her employer, Nationwide Insurance, asserted that she used profanity during a telephone conversation that was monitored for quality control purposes. However, Erdman claimed she made a personal call, and, according to company policy, personal calls were not monitored. Filing suit under the FMLA, Erdman alleged that her employer’s motives for discharging her were pretextual, and she was actually fired for requesting FMLA leave. The district court granted summary judgment to the Nationwide on the grounds that Erdman had not met the 1,250-hour threshold to be eligible for leave under the FMLA.

First addressing Erdman’s eligibility for FMLA leave, the Third Circuit held that she presented a genuine issue of material fact as to whether Nationwide had notice that she worked at least 1,250 hours. Erdman had worked extra hours from home, accruing “comp” time, until her supervisor told her that she could no longer do so, determined the Third Circuit, and the district court excluded those hours from the 1,250-hour threshold. The additional hours made her eligible for FMLA leave for the purposes of summary judgment.

As to whether Erdman stated actionable FMLA claims, the Third Circuit held that employees need not begin their FMLA leave to establish interference or reprisals claims under the Act. The court wrote that “it would be patently absurd if an employer who wished to punish an employee for taking FMLA leave could avoid liability simply by firing the employee before the leave begins.” Reviewing the FMLA’s interference and reprisal provisions, the circuit court interpreted “the requirement that an employee ‘take’ FMLA leave to connote invocation of FMLA rights, not actual commencement of leave.” Therefore, firing an employee for making a “valid request for FMLA leave may constitute interference with the employee’s FMLA rights as well as retaliation against the employee” under the FMLA, held the Third Circuit, remanding the case back to the district court to determine if unlawful interference or retaliation occurred.

The bottom line. The Third Circuit’s decision makes clear that employees don’t have to “begin” their FMLA leave in order to advance actionable interference and reprisal claims under the Act; they need only “request” FMLA leave in order to advance such claims. Of course, there still has to be some sort of causal connection between the employee’s request for leave and the employer’s adverse employment action. It also wouldn’t hurt for employers to state in a written policy whether extra hours worked outside the office count towards the 1,250-hour threshold for employees to be considered an “eligible” employee under the FMLA, or to simply have a policy prohibiting “off-the-clock” work altogether.