That is how one court described the quandary an employee faced after asking for FMLA leave. Here’s the brief, back story.
An employee asks for FMLA leave. The reason for which she requests the leave is not FMLA-qualifying. So, the employer properly tells her she is not eligible for FMLA leave. The employer then fires her. Of course, she sues. She alleges the employer retaliated against her for exercising her FMLA rights. But, the employer asks, how does one exercise their FMLA rights when they don’t have any?!
Therein lies the rub. The court noted that the FMLA protects an employee’s “attempt” to exercise FMLA rights. Sometimes an employee needs to ask if she is eligible in order to know if she is, or is not. “[F]iring an employee for asking would also frustrate the aims of the Act…Such an ‘ask at your peril’ approach could deter employees…from taking the first step necessary to exercise their rights.”
Originally published on Five L Net blog.
Ms. Walters has more than 25 years’ combined experience in management, HR administration, employment law practice, and teaching.
She has received national and regional awards, presented at conferences across the country, been engaged as an expert witness for the defense, and testified before U.S. Congressional and state legislative committees and administrative agencies on employment issues. Her book, “From Hello to Goodbye: Proactive Tips for Maintaining Positive Employee Relations” has been one of the publisher’s (SHRM) “Great 8” best-sellers for three consecutive years: 2011 – 2013; was SHRM’s second best-seller January 2014; and is pre-approved by HRCI for 2.5 continuing education credits.
Ms. Walters demonstrates her commitment to supporting and advancing the needs and interests of the business community and HR profession by serving in a variety of volunteer leadership roles at the national, state and local levels.
Today Ms. Walters works as an independent consultant providing proactive human resources and employment law consulting services and training programs doing business as FiveL Company, “Helping Leaders Limit their Liability by Learning the Law.”SM
You can contact Christine at info@FiveL.net. Follow her on Twitter: @Christinevbw
The SHRM Blog does not accept solicitation for guest posts.
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