Employment-Third Circuit Permits Interference and Retaliation Claim Under The FMLA Even Though The Employee Had Not Taken Any Time Off

In Erdman v. Nationwide Insurance Company, No. 07-3796 (3rd Cir. 2009), the plaintiff, Brenda Erdman, was employed by the defendant, Nationwide Insurance Company (“Nationwide”). In April, 2003, Erdman submitted paperwork to Nationwide, requesting leave under the Family and Medical Leave Act (“FMLA leave”) from July 7 to August 29. Nationwide fired Erdman in May, 2003, citing purported behavioral problems, such as using a profanity during a phone conversation. Erdman brought suit against Nationwide under, among other statutes, the FMLA claiming that she was actually fired for requesting FMLA leave, so that the firing constituted proscribed interference with, and retaliation for trying to use, her FMLA rights. The case found its way to the Third Circuit Court of Appeals.

One question that the Third Circuit Court addressed is whether an employee must actually begin to take FMLA leave to establish a case of interference or retaliation under the FMLA. The Court stated 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.” The Court then reviewed the applicable statutory provisions. One such provision (29 U.S.C. Section 2615(a)), entitled “Interference with [FMLA] rights,” states that “[i]t shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter”, and that “[i]t shall be unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter. In addition, 29 C.F.R. ยง 825.220(c) prohibits employers from “discriminating against employees or prospective employees who have used FMLA leave.” (emphasis added). The Court interpreted these provisions as applying when an employee begins to invoke his or her rights under the FMLA-such as when initially requesting FMLA leave-not when the leave actually starts. A such, the Court held that 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. The Court remanded the case back to the District Court to determine if such interference or retaliation had actually occurred.