Retaliation for Requesting or Taking FMLA Leave

Life is unpredictable and medical emergencies happen. The Family and Medical Leave Act (FMLA) provides employees with job-protected leave so they can seek treatment, heal, or tend to a sick loved one without risking their livelihood. If you were disciplined after taking or being approved for medical leave, you may be the victim of unlawful retaliation. The Family and Medical Leave Act (FMLA) prohibits employers from retaliating against employees who request time off or otherwise exercise their rights under the FMLA. Nashville FMLA Lawyer Curt Masker is dedicated to seeking the maximum compensation possible for your claims.

Common examples of FMLA retaliation may include:

• Counting FMLA leave as an absence under attendance policies
• Terminating an employee shortly after returning from protected medical leave
• Denying a promotion to an employee who otherwise would have been promoted
• Cutting an employee’s pay or benefits after the employee requests medical leave
• Reinstating an employee to a lesser position
• Changing an employee’s work location or shift after she returns from leave
• Otherwise using an employee’s FMLA leave as an adverse factor in employment decisions such as promotions, pay raises, or disciplinary actions

Upon returning from protected medical leave, an employee is entitled to be restored to the same or an equivalent position, meaning the same pay, benefits, and other employment terms and conditions including shift and location.

Most employees do not have direct evidence of retaliation. An example of direct evidence would be if your supervisor said, “I’m firing you because of your FMLA leave!” Not many employers are dumb enough to say such a thing. As such, most retaliation claims are proven with circumstantial evidence.

To establish an FMLA retaliation claim based on circumstantial evidence, a plaintiff must show: (1) she availed herself of a protected right under the FMLA; (2) she suffered an adverse employment action; and (3) there was a causal connection between the adverse action and protected activity. Wallner v. J.J.B. Hilliard, W.L. Lyons LLC, 590 F. App'x 546, 551 (6th Cir. 2014).

An FMLA retaliation claim requires the employee to show an adverse employment action, which may include one or more of the following actions:

• termination
• demotion
• pay cut
• eliminating or reducing job responsibilities
• denied a pay raise
• passed over for promotion

To create a legal connection between the FMLA leave and the adverse action, an employee can point to several pieces of evidence. For example, if the adverse action occurred soon after the employee requested or returned from leave, this suggests the protected leave was considered by the employer in its decision-making process. This is known as close “temporal proximity.” The starting point used in calculating temporal proximity may be the date the employee requested FMLA leave or the date the employee returned from FMLA leave. Id. at 554.

An employee alleging FMLA retaliation must also show that her FMLA leave request or usage was a motivating factor in the employer’s adverse employment decision. In other words, if the employer’s decision was based on both lawful and unlawful reasons, then the employer may still be held legally responsible.

An employer can avoid liability in some circumstances by showing it would have made the same employment decision even if the employee’s FMLA leave was not taken into account. For example, if the employer made its final termination decision before the employee requested FMLA leave, then this is strong evidence that the company would have made the same decision regardless of the employee’s FMLA leave.

Some adverse employment actions encompass both types of FMLA claims: (1) Interference and (2) Retaliation. As an example, an employer who fires an employee who just requested FMLA leave before she can take it can be sued for retaliation (because the employee requested the leave) and interference (since the termination precludes the employee from taking the required leave).

Claims under the FMLA generally must be filed within 2 years after the alleged violations. In egregious cases involving willful violations, this deadline is extended to 3 years. Conduct is “willful” when it is more than mere negligence, such as an employer who continues to violate the FMLA even after learning of its legal obligations. The burden is on the employee to establish a willful violation.

If you were disciplined or fired after requesting or taking FMLA leave, contact Nashville-based FMLA Attorney Curt Masker at 615-200-0241 or email him for an online case review.