I Tried to Take or Took FMLA Leave and Now I Think My Employer is Retaliating Against Me?
As you are likely aware, the Family and Medical Leave Act (“FMLA”) is a national law that allows certain employees to take up to 12 workweeks of unpaid leave during a 12-month period for applicable family and personal medical reasons. When you return from qualified FMLA leave, your employer must return you to your original job or an equal job with the same pay, benefits, and other terms and conditions of employment.[1]
What Does it Mean to Retaliate Against An Employee Under the FMLA?
The FMLA does not specifically refer to retaliation. Instead, the FMLA makes it unlawful for an employer to “interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided” by the FMLA.[2] Generally, FMLA retaliation falls into two categories: interference and retaliation.[3] This means that your employer could be liable under the FMLA if it interferes with your FMLA leave by preventing you from taking it or discouraging you from taking it. Likewise, you exercise of FMLA leave cannot be a negative factor in connection with actions that harm your employment status.[4]
What Are Some Examples of FMLA Retaliation?
In a recent case, a court found that an employer might be liable under the FMLA since an employee was told “nobody takes” FMLA leave and the employee might “affect [his] reappointment and tenure” by taking FMLA leave.[5] Your employer could also be liable if it retaliates against you for actually using FMLA leave. This might mean that your employer treats your FMLA leave as a negative factor in evaluating your work performance. Specifically, a court recently found that, where an employer’s initial, draft recommendations regarding whether the employee should be reappointed to his position referenced the employee’s exercise of FMLA leave as a reason to deny reappointment, these actions also supported a finding of FMLA retaliation.[6] In other cases, courts permitted employees who were terminated approximately five[7] and seven[8] weeks, respectively, after each returned from FMLA leave to proceed with their cases.
There are many variations and additional details applicable to the basic principles described above. If you would like to discuss your situation with us, please feel free to call or e-mail us at any time. You will be on the phone with an attorney within 24 hours.
REFERENCES
[1] https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/whdfs28.pdf
[2] Patel v. Long Island Univ., 17 CV-2170 (NGG)(JO), 2020 U.S. Dist. LEXIS 30201, *11, 2020 WL 869125 (E.D.N.Y. Feb. 21, 2020).
[3]Id.
[4] Id. at *15.
[5] Id.
[6] Id. at 11.
[7] Walker v. Access Agency, 3:02CV199 (AHN), 2004 U.S.Dist. LEXIS 19624, *25-26, 2004 WL 2216526 (D. Ct. Aug. 31, 2004).
[8] Lareau v. Northwestern Md. Ctr., Case No. 2:17-cv-81, 2019 U.S. Dist. LEXIS 112374, *29, 2019 WL 2929793, (D. Vt. Jul. 8, 2019)