In Beffert v. Pennsylvania Department of Public Welfare, 2005 WL 906362 (E.D. Pa.), the district court for the Eastern District of Pennsylvania held that a recently-hired employee who had announced her pregnancy and requested leave (that would take effect more than one year after her initial employment) could seek protection of the FMLA despite her subsequent firing that ended her employment well short of one year.

On July 28, 2003, Lisa Beffert began her employment as a storeroom clerk at the Allentown State Hospital, which is operated by the Pennsylvania Department of Public Welfare. On January 6, 2004, she notified the hospital that she was pregnant. Beffert was not expected to deliver her baby until after July 28, 2004, more than twelve months following the start of her employment. Between January 6 and 20, 2004, after she had notified Allentown State Hospital and Weaver of her pregnancy, they discriminated and retaliated against her by subjecting her to a pre-disciplinary conference, a written reprimand, and a negative performance evaluation, and then by terminating her on January 20, 2004, effective the next day. Beffert brought suit against the Pennsylvania Department of Public Welfare for violations of the Family and Medical Leave Act (FMLA) and other federal and state laws. Prior to filing an answer, the Department of Public Welfare moved the district court to dismiss the complaint for failure to state a claim upon which relief can be granted.

Defendant, the Department of Public Welfare, argued that Beffert’s FMLA claims should be dismissed because she has been employed for less than a year at the time of the alleged adverse actions. To be eligible for FMLA protection, an employee must have been employed with the employer at least 12 months and have worked for at least 1250 hours during the 12 month period immediately preceding the leave requested. Defendant claimed that Beffert’s expectation that she would have still been employed by the date of her expected delivery was too tenuous and speculative to make her an “eligible employee” for FMLA purposes. Beffert maintained that her expectation of employment if not for the premature termination makes her an eligible employee under the FMLA.

The district court admitted that it had not been faced with this issue before. It sought guidance from an eleventh circuit decision. In the case of Walker v. Elmore County Bd. of Educ., 223 F.Supp.2d 1255 (M.D.Ala.2002), aff’d, 379 F.3d 1249 (11th Cir.2004), the district court, although ultimately ruling against the plaintiff, opined that a pre-eligibility employee had a claim under the FMLA for retaliation when almost all of her leave would have taken place after a year of employment. Id. at 1261. However, the Eleventh Circuit Court of Appeals concluded that because the plaintiff’s leave was scheduled to begin prior to the expiration of the year, she was not entitled to relief. The court of appeals held that “[t]here can be no doubt that the request–made by an ineligible employee for leave that would begin when she would still have been ineligible–is not protected by the FMLA.” Walker, 379 F.3d at 1253. The court declined to decide whether the result would have been different if plaintiff had made a pre-eligibility request for leave to begin after her one year anniversary date.

The district court then turned to the regulations interpreting the FMLA as promulgated by the United States Department of Labor. Those regulations reaffirmed that to be an “eligible employee” under the FMLA, a person must be “an employee who has been employed for at least 12 months by the employer with respect to whom leave is requested under section 2612 of this title.” 29 U.S.C. section 2611(2)(A)(i).

Finally the court looked to the statute and discovered that while an employee cannot be an eligible employee unless “the date leave commences” is after the employee has worked at least twelve months, the FMLA also requires that “an employee” provide the employer with not less than 30 days’ notice of the date leave is to begin where such notice is practicable. 29 U.S.C. section 2612(e)(1). The 30 day notice requirement permits the employer time to make arrangements for the departure of the employee requesting leave. The court further noted, This reference to ‘employee’ rather than ‘eligible employee’ is a recognition that some employees will and should give notice of future leave before they have been on the job for twelve months. Since the FMLA contemplates notice of leave in advance of becoming an eligible employee, the statute necessarily must protect from retaliation those currently non-eligible employees who give such notice of leave to commence once they become eligible employees. See 29 U.S.C. section 2615(a). Otherwise, the advance notice requirement under 29 U.S.C. section 2612(e) becomes a trap for newer employees who comply with this provision of the FMLA and affords a significant exemption from liability for employers. We do not think Congress intended this anomalous result.”

The court’s finding allows recently-hired employees to request leave prior to attaining one year of tenure with the employer and provides them with some assurance that they are not without enforceable rights if the employer retaliates because of their leave request.

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