Retaliation and the FMLA

You’ve been working at your job for years with no problems. In fact, your employer has given you nothing but good feedback. And then, your mother gets sick and you have to take off time from work to take care of her. You decide to exercise your rights under the Family Medical Leave Act (FMLA), which gives you up to 12 weeks of unpaid leave in a year in order to care for a family member with a serious health condition.

When you return to work, you find things have changed. As far as you can tell, you’re doing the same quality of work you always did, but now your employer seems unhappy with you. After a few weeks, you are fired.

Do you have cause to file a lawsuit?

Retaliation claims

The answer to the above question depends on the exact circumstances, but it’s quite possible that a case like this could lead to a claim of wrongful termination on the basis of unlawful retaliation.

The FMLA not only gives you the right to take leave from work, it also protects you from retaliation when you return to work. This means that the employer cannot take adverse action against you because you exercised your rights under the FMLA. Adverse actions include not only termination, but demotion, pay cuts and other actions.

If you feel you have been retaliated against because of your protected leave, you can file a complaint with the Wage and Hour Division of the Department of Labor. The agency can then begin an investigation.

The FMLA also gives you the right to sue the employer within two years.

If successful, you can recover damages to compensate you for the wages you lost due to your employer’s unlawful behavior. In some cases, courts will award double your compensatory damages if they find an employer acted in bad faith.

Proving your case

To be successful, you must show:

  1. You engaged in behavior that was protected under the FMLA.
  2. You suffered an adverse action at work.
  3. The adverse action was connected to your protected behavior.
  4. The employer had no legitimate reason for taking the adverse action.

The first two of these requirements may be easy enough to establish. The second two can be quite difficult.

The employment law attorneys of Alan C. Olson & Associates help workers understand their rights and legal options.


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