FMLA Retaliation Claims


The Family and Medical Leave Act, FMLA, makes it the employers’ responsibility to give unpaid leave to workers for the adoption or birth of a child.


What isn’t as well known is the FMLA prohibits an employer from retaliating against a worker who has taken leave under FMLA.  When an employer violates the law, FMLA retaliation claims can be filed against the government.


Just because an employer has given a worker twelve weeks of leave does not mean the employer’s vulnerability for liability has been wiped clean. A work claiming they have been subjected to adverse employment reactions due do taking protected leave can sue.


Technically, the statue does not contain prohibitions against retaliation. Rather, the FMLA makes it illegal to ‘interfere’ with the rights made possible through the Act.


The Second Circuit Court of Appeals issued an opinion about the availability of discrimination claims and described the applicable standard in Potenza v City of New York.


The court ruled the same standard used for evaluating other claims of discrimination under Title VII claims apply.  A Plaintiff must prove:


  1. He exercised rights protected by FMLA,
  2. He is qualified for the position,
  3. He experienced adverse employment action, and
  4. The adverse action happened under circumstances which rose to the level of discrimination.


Six Examples of FMLA Retaliation




Disciplining a worker for taking leave, such as a bad review or counting time off against you, are subtle types of discipline. Employers might use these forms of discipline as a pretext for wrongful termination.




An especially drastic example of retaliation is being terminated for taking family leave. A person taking leave which is protected by FMLA may have a solid case and should seek legal guidance right away.




An employer may retaliate by giving a worker lesser responsibilities when they return to work. For example, a department supervisor prior to FMLA leave returns and has been demoted to front line worker may have been subject to retaliatory behavior on the part of the employer. Anyone who experiences this should talk to the supervisor and ask the reason for the demotion. A journal of all meetings or conversations with the employer may help build a case.


Reduction in Pay


Under the law, a person is allowed to the same pay and benefits following family leave which they enjoyed prior to taking leave. A reduction in either supports a claim of FMLA retaliation.


Work Assignment


Often, FMLA retaliation comes with the assignment of additional duties or even a different work situation. An employer, for example, may add heavy lifting of products 50 pounds or more as regular duty which wasn’t assigned prior to leave.


The Takeaway


Retaliation against a worker for taking time off under the FMLA is unlawful. Employers doing this should be stopped and held accountable for their actions. The best first step for an employee who has suffered because of illegal acts is to seek legal help in filing for FMLA retaliation claims.