Lamberton Law Blog

Being away from work for an extended period of time doesn’t always feel like a vacation. If you are taking time off work under the Family and Medical Leave Act (FMLA), you likely have enough to worry about without job insecurity compounding your stress. FMLA offers some protection so you can focus on the critical task of healing yourself or caring for your loved one during your leave.

FMLA Explained

The Family and Medical Leave Act is a federal law that provides eligible employees with up to 12 weeks of unpaid leave for certain qualifying health and family reasons. These weeks can be used within a 12-month period without the threat of being fired for the absence. The time does not have to be taken consecutively and can be used periodically throughout the 12 months if needed. Additional time is also available in limited circumstances.

A worker may be eligible for FMLA if they:

• Have been employed with their company for at least one year;
• Have worked a minimum of 1,250 hours in the past 12 months; and
• Are employed in a location with at least 50 employees within a 75-mile radius.

There are exceptions to these rules, as is the case with most laws and legislation. For instance, public sector employees are not always bound by the minimum workforce and location radius requirements.

In most circumstances, though, employers do have to meet specific criteria in order to be held to the FMLA guidelines. Some states have legislation in place to provide additional benefits to workers, but Pennsylvania does not, so the federal mandates dictate the standards for this state’s workers.

FMLA Protections

The primary protection offered by this Act involves the amount of time an individual can take leave from work without being in fear of losing their job. This is not only crucial for people recovering from surgery or struggling with a chronic health condition but also following the birth of a child. In many circumstances, the birthing mother needs an extended amount of time to recover from labor and bond with her baby, but both parents can benefit from and possibly be entitled to this time.

There is another important way that the FMLA protects workers. Employers and managers are not always understanding of an employee’s need to take extended leave. This can sometimes become difficult for the worker upon returning to their job, which is why the FMLA regulations prohibit retaliation. If your leave has almost ended or is set to end soon, you’ll want to make sure you know your rights once you get back to work.

After Using FMLA

When you return to work, you are entitled to be reinstated to the same job you had prior to your leave or an equivalent position. You must also be given the same benefits, including health insurance and retirement plans, and you cannot be required to requalify for such programs. Your employer must offer a similar work schedule to your pre-leave shifts, as well as the same salary.

Further, you cannot be prevented from receiving bonuses, raises, or promotions based merely on the fact that you were on FMLA leave. Unfortunately, sometimes simply stating that you cannot be fired for taking leave is not enough to ensure fair treatment at work. That’s why these extra protections are necessary. How can you tell if your management or human resources team is treating you negatively because of your need for temporary family or medical leave?

Signs of Retaliation

Red flags are sometimes easy to spot. Any violation of the previously mentioned protections or rights could signal that you’re being retaliated against. For example, receiving a pay decrease or being fired shortly after requesting or taking FMLA leave is very suspicious. If your manager or other supervising staff are being uncharacteristically rude, you may also suspect it is occurring because of your leave.

You are protected from receiving any disciplinary action prompted by your decision to use FMLA. This includes any negative notation on a performance review, being written up, or having any derogatory marks included in your employee file.

The signs are not always obvious. Other potential kinds of retaliation you may experience include:

• Being assigned to a less favorable shift or hours;
• Being given different tasks, especially ones that are considered undesirable by your coworkers;
• Having unfinished work that was due while you were out included in performance ratings;
• Firing you for a seemingly unrelated cause before your leave starts;
• Losing seniority status; and
• Becoming ineligible for a promotion or pay raise.

One very subtle method of mistreatment can come in the form of slight adjustments in working conditions. Maybe you’ve been reinstated to your same position, but now you’re in a different office with no windows. Perhaps your supervisor used to allow liberal rest periods during hot days, but now only allows the legally required breaks.

If you notice any subtle or flagrant violations of your rights under the FMLA and file a complaint, you are also protected from retaliation based on your complaint. You are allowed to file a charge or start a review proceeding without fear of negative consequences. Just as your employer cannot mistreat you for taking the leave, they also cannot let your involvement in an investigation affect their treatment of you.

What Is Not Retaliation

Not every change in your working conditions or circumstances will mean your employer is unjustly retaliating against you. Sometimes adjustments are necessary upon your return or became necessary while you were on leave. Hiring new employees may have been unavoidable to cover your shift, or there have been company-wide layoffs.

If there were performance issues prior to your absence, your employer is still allowed to address those. These reasons can include a documented history of subpar performance, poor attendance not related to protected leave, repeated disagreements or conflict with coworkers, or company policy violations. That being said,  any adverse action taken against you should be well-documented and reasonable.

How to Respond to Retaliation

You generally have two options if you suspect retaliation. One option is to contact the Wage and Hour Division (WHD) with the Department of Labor and file a complaint. When you file your complaint, describe the actions and circumstances surrounding your treatment. You will also need to include the company you work for and the location, as well as the individual who engaged in the unlawful conduct. The WHD will investigate your claim and make a determination based on the evidence they find.

The second option is to file a civil lawsuit. If this is the course you choose to take, you should know that there is a statute of limitations in these cases. An employee generally has two years from the date of the suspected FMLA violation. The timeframe might be extended to three years if the employer committed a willful violation, meaning they purposefully engaged in illegal conduct or acted with extreme disregard for the law.

Regardless of how you choose to proceed, you will want to ensure you are keeping as detailed of a record as possible. Save any correspondence or other documentation that may prove your rights were violated. The more evidence you can gather, the easier it will be for any investigating body to get a clear picture of your treatment.

Potential Outcomes for Employees

If the WHD or a judge finds that you were retaliated against unlawfully, you may be awarded monetary compensation or other damages for your mistreatment. These include lost pay damages such as the recovery of wages and benefits, as well as liquidated damages.

Equitable relief is also awarded in many successful retaliation claims. This is often reinstatement to the same or a similar position or receiving a promotion if warranted.  

If you suspect you’ve been retaliated against because you took leave to bond with your newborn or get well following a health scare, you might be protected under the Family and Medical Leave Act. Life happens to all of us, and you shouldn’t have to worry that taking care of yourself or your loved ones will lead to unfair treatment from your employer.  If you feel like your employer has been behaving in a retaliatory manner after you've taken FMLA leave, contact attorney Charles Lamberton for a consultation.