In a case with similar facts, a federal trial court in South Carolina ruled that an employee may bring a retaliation claim under the FMLA if the employee was terminated prior to becoming eligible for FMLA leave but had declared an intention to take leave once eligible.

Noting that courts have been inconsistent in addressing the issue, the court stated that it was more consistent with the goals of the FMLA, and provided for a more equitable result, to find that an employee may bring a retaliation claim if the employee was terminated prior to becoming eligible for FMLA leave. Moreover, the court reasoned, the FMLA 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. 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, the court concluded.

Source: Gleaton v Monumental Life Insurance Co (DSC 2010) No. 2:09-cv-01667-MBS.