The Family and Medical Leave Act continues to present vexing issues for employers and their counsel. A few years ago, I wrote about an employee who was terminated after returning from an extended stay in Jamaica, ostensibly to care for a sick family member, where she had previously been denied vacation for roughly the same period of her alleged FMLA leave. In Erdman v. Nationwide Ins. Co., the 3rd U.S. Circuit Court of Appeals addressed an FMLA claim where an employee was terminated after requesting a two-month FMLA leave of absence over the summer in order to prepare her mentally challenged daughter for school. She had previously been told that her request for vacation for that period would likely be denied.

FMLA When Vacation Denied

Brenda Erdman worked for Nationwide from 1980 until May 2003. For some of that time, Erdman worked four days a week until early 2003 when her part-time position was eliminated. When she returned to full-time work, she sought “clarification” that Nationwide would honor her previously approved request for vacation during the entire month of August, which she had typically taken to prepare her daughter (with Down syndrome) for school, according to the opinion. Nationwide advised Erdman that it was unlikely that she would be allowed to take vacation in August because of the number of employees who typically request vacation during that month, the opinion noted. When advised of this, Erdman stated that she would request FMLA leave instead.

A few weeks later, Erdman submitted a request for FMLA leave from July 7 to Aug. 29. At that time, a human resources employee told Erdman that “I probably don’t see any problems with this,” according to the opinion. A few weeks later, Nationwide terminated Erdman for her purported behavioral problems that culminated in using a profanity toward her supervisors during a phone conversation monitored for quality control purposes, according to the opinion. She brought suit under the FMLA, claiming both interference and retaliation, and also under the Americans with Disabilities Act, attempting to state a claim for associational discrimination. The district court granted summary judgment in favor of Nationwide and Erdman appealed.

Elements of Retaliation Claim

One of the questions addressed by the court was whether Erdman could recover for FMLA retaliation if she did not actually take a leave of absence. This argument was based upon the 3rd Circuit’s formulation of the elements of a claim for FMLA retaliation, as set forth by the court in Conoshenti v. Pub. Serv. Elec. & Gas Co. In Conoshenti , the court said that the first requirement of a retaliation claim is that “an employee took an FMLA leave.” The district court in Erdman cited Conoshenti but stated the first element of the test as whether “he or she is protected under the FMLA … .” Nationwide argued that under Conoshenti , “an employee cannot establish a retaliation claim unless she actually commenced leave.”

The court began its analysis by noting that “it would be patently absurd if an employer who wished to punish an employee for taking FMLA leave could avoid liability simply by firing the employee before the leave begins.” With this “absurdity” noted, the court stated that it had “never held that an employee fired after requesting FMLA leave but before the leave begins cannot recover for retaliation … .” As such, the court interpreted its own language (requiring that an employee “take” FMLA leave) as simply requiring an “invocation of FMLA rights, not actually commencement of leave.” The court held, therefore, 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.”

Counting to 1,250

The second issue addressed by the court involved whether Erdman had worked the requisite 1,250 hours necessary to be eligible for coverage under the act.

As noted, Erdman was a part-time employee for almost the entire year preceding her request for FMLA leave. The numbers were close. During the year preceding her leave, Erdman calculated that she worked 1,298 hours, which included 57 hours worked from home prior to an e-mail exchange with her supervisor asking whether she was allowed to work extra hours for use as “comp” time, which she had historically been permitted to do. The question addressed by the court was whether Nationwide had actual or constructive notice that Erdman worked at least 1,250 hours in order to be eligible under the FMLA.

The background to this question is that, for years, Erdman had been allowed to work hours over and above those required of a part-time employee and was allowed by Nationwide to exchange these hours for future vacation time. In September 2007, Erdman was told to “put in the hours that … you are supposed to put in and nothing more than that,” as noted in the opinion. Subsequently, in January 2003, Erdman was told that she was “not authorized to work outside [her] standard work hours.”

The question was whether Nationwide’s September e-mail that she should “put in the hours that you are supposed to put in” relieved Nationwide of any constructive knowledge that Erdman was working additional hours. The court found that the e-mail was ambiguous in that a reasonable jury could conclude that the purpose of the communication was to prohibit Erdman from working overtime. That is, “from being paid for more hours than she was scheduled to work each week, without regard as to whether Erdman could continue to accrue ‘comp time.’” The court found, therefore, that there was a genuine issue of fact as to whether Nationwide knew, or should have known, that Erdman was working the additional hours. The court found that it was not until February 2003, when Nationwide specifically prohibited her from accruing comp time, that the additional hours would no longer “count” toward the 1,250 hour requirement.


The case highlights an issue that most employers have faced. That is, an employee who is rejected for vacation (typically during the summer or over the holiday season) and then attempts to take FMLA for the rejected period. Under these circumstances, the new regulations permit greater questioning regarding the need for leave. The regulations would not have assisted Nationwide in this matter, but are generally of assistance to employers in exploring the reasons for FMLA leave. As for counting hours under the act, the question under wage payment law is whether an employee is “suffered or permitted to work.” Under the FMLA, the issue is not just the hours worked, but, as the court found, whether the employer was aware of the hours being worked. •

Sid Steinberg is a partner in Post & Schell’s business law and litigation department. He concentrates his national litigation and consulting practice in the field of employment and employee relations law. Steinberg has lectured extensively on all aspects of employment law, including Title VII, the FMLA and the ADA.