The case involves a claim of FMLA interference brought by an employee who had notified the employer she would be taking FMLA leave once she became eligible for it. The employer terminated her before she became eligible. A lower court had decided that since the claimant was not an eligible employee at the time she was terminated, she could not bring either an interference or retaliation claim under the FMLA. The Eleventh Circuit disagrees, reasoning: “because the FMLA requires notice in advance of future leave, employees are protected from interference prior to the occurrence of a triggering event,” and if the pre-eligibility request is a protected activity, retaliation for that request is also prohibited.

“Without protecting against pre-eligibility interference, a loophole is created whereby an employer has total freedom to terminate an employee before she can ever become eligible. Such a situation is contrary to the basic concept of the FMLA,” the Court concludes. Pereda v. Brookdale Senior Living