Client Alert
Contact:
Steven B. Harz, Esq., Chairman
Labor & Employment Law Group
201-342-6000
September 25, 2009

THIRD CIRCUIT RULES THAT FMLA PROTECTS EMPLOYEES WHO CLAIM THEY WERE FIRED MERELY BECAUSE THEY REQUESTED FMLA LEAVE

Dear Clients and Friends:

On September 23, 2009, the United States Court of Appeals for the Third Circuit in Erdman v. Nationwide Insurance Co. issued a decision which holds that the termination of an employee who merely requested a leave pursuant to the Family and Medical Leave Act (“FMLA”) may constitute retaliation against the employee, even where the employee never takes such leave.

In Erdman, plaintiff Brenda Erdman was employed by Nationwide Insurance Company (“Nationwide”) from 1980 until her termination in May 2003. In April 2003, Erdman, whose daughter was born with Down syndrome, submitted paperwork requesting FMLA leave from July 7 to August 29. However, on May 9, 2003, Erdman was fired due to behavioral problems.

Erdman subsequently filed suit against Nationwide, alleging violations of the FMLA and Americans With Disabilities Act. Erdman claimed, among other things, that Nationwide’s reason for her termination was pretextual and that she was fired for requesting FMLA leave. The United States District Court for the Middle District of Pennsylvania granted summary judgment in favor of Nationwide on all claims, and Erdman appealed the District Court’s decision to the Third Circuit.

With respect to Erdman’s retaliation claim, Nationwide argued that Erdman cannot recover on a retaliation theory because she did not actually go out on FMLA leave. The Third Circuit found that the termination of an employee due to a valid FMLA leave request (even where no leave was taken) may constitute retaliation.

Employers are advised that they may now be liable under the FMLA on theories of both interference and retaliation for terminating employees after valid requests for leave are made, but before such leaves are taken.

If you have any questions with regard to the application of this case to your Company or with respect to any other labor and employment law matter, please do not hesitate to contact Steven Harz, Esq., at (201) 342-6000, or via email at sharz@hertenburstein.com.