A company had “constructive notice” of hours worked at home by an employee because of its “comp time” practice, and thus the employee was eligible for leave under the Family and Medical Leave Act, the Third Circuit rules.

The company had discharged the employee for “behavioral problems,” but she charged she was actually fired for requesting FMLA leave. The company argued she was not eligible for FMLA because she did not work the minimum 1,250 hours in the 12-month period prior to her request.

The company did not dispute that for many years, the employee had been allowed to regularly work outside of the office, and to receive “comp time” in lieu of payment as an exempt employee. When the position was converted to non-exempt, it was not made clear to the employee that she could no longer work outside the office to accrue comp time. She allegedly continued to accrue comp time by working extra hours until a new supervisor prohibited her from accruing and using comp time.

The Third Circuit determines that until the new supervisor gave her this prohibition, the company had constructive notice of the hours the employee worked from home, and if all those hours were counted, she would have accumulated enough hours to be eligible for FMLA.

The Court says that the employee need not actually take the FMLA leave to be protected from retaliation: “Accordingly, we interpret the requirement that an employee ‘take’ FMLA leave to connote invocation of FMLA rights, not actual commencement of leave. We therefore hold that firing an employee for a valid request for FMLA leave may constitute interference with the employee’s FMLA rights as well as retaliation against the employee.” Erdman v. Nationwide Insurance Co.