The Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601, et seq., is an important law that allows employees in need to manage personal or family health conditions without worrying about losing their job.  The FMLA provides certain employees with up to 12 weeks of unpaid, job-protected leave per year. It also requires that their group health benefits be maintained during the leave. The law also makes clear that employers may not retaliate against employees for exercising their FMLA rights.

What Is The FMLA?

Employee Rights Under The FMLA

The FMLA provides guaranteed leave for qualified workers who need time off to attend to a medical condition or care for a family member. Under the FMLA, covered employees can take up to 12 weeks of unpaid leave per year, provided that the leave is for a reason covered by the Act.[1] These include:

• birth of a child,

• adopting or fostering a child,

• caring for a family member with a serious health condition, or

• taking medical leave due to a health condition.

During the 12 weeks of leave afforded by the FMLA, an employee’s job is secure and their health benefits must be maintained.

The FMLA applies only to certain employers. These are:

• public agencies,

• elementary and secondary schools, and

• companies with at least 50 employees working within a 75-mile radius.

Employees are eligible for leave so long as they worked at least 1,250 hours for the employer over the previous 12 months.

Protections Against Retaliation For Taking FMLA Leave

Under the FMLA and related regulations, employers are prohibited from “interfering with, restraining, or denying the exercise of any rights provided by the Act.”

Additionally, employers are barred from “discharging or in any other way discriminating against” employees for exercising their rights under the Act. This bar on retaliation protects employees who:

1. oppose or complain about an unlawful practice under the Act;

2. file any charge or initiate a proceeding under the Act; or

3. give information or testify in an inquiry related to a right protected under the Act.

See 29 U.S.C. § 2615. This means that employers generally cannot fire, demote, or otherwise mistreat their employees for using their FMLA-protected leave or for cooperating with an FMLA-related investigation.

What To Do When Retaliation Happens

Employees who believe they have been retaliated against for exercising their FMLA rights have two courses of action.

The first is to file a complaint against the employer with the Department of Labor’s Wage and Hour Division (WHD). A complaint initiates an investigation into the employee’s claim. Complaints can be submitted in person, by mail or by telephone. WHD advises that complaints be submitted within a “reasonable time” of the alleged violation so that an investigation can be completed before the statute of limitations expires.

In 2020, 966 FMLA complaints were filed with WHD. Of these, approximately three-quarters alleged that the employee had been terminated, demoted, or discriminated against in violation of their protected FMLA rights. 48 percent of complaints investigated identified a violation.

Employees can also bring a civil lawsuit for retaliation under the FMLA. A lawsuit must be brought within two years of the action that the employees believe violated the FMLA, or within three years if the violation was “willful.” A violation is willful if the employer either knows their conduct is illegal or shows reckless disregard for whether it acted unlawfully.

In deciding how to proceed with your FMLA retaliation claim, it is helpful to speak with an experienced employment lawyer.

Elements Of A Retaliation Claim

When analyzing an FMLA retaliation claim, courts generally follow the three-step burden-shifting framework first laid out by the Supreme Court in McDonnell Douglas v. Green, 411 U.S. 792 (1973).

Prima Facie Case

First, the plaintiff must establish a prima facie case of retaliation. In most federal courts, this requires the plaintiff to show that:

1. they engaged in activity protected by the FMLA;

2. they suffered an adverse employment action; and

3. there was a causal connection between the protected activity and the adverse employment decision.

See, e.g., Fry v. Rand Constr. Corp., 964 F.3d 239 (4th Cir. 2020); Everson v. Sci Tenn. Funeral Servs., LLC, NO. 3:15-cv-01478 (M.D. Tenn. Apr. 20, 2018).

“Adverse employment action” includes many different types of employment changes. Courts often cite Burlington Industries, Inc. v. Ellerth, where the Supreme Court stated that this could include “hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Further, many appellate courts have ruled that FMLA retaliation claims are governed by the broader retaliation standard of whether the adverse action might have “dissuaded a reasonable worker from making or supporting a charge of discrimination.” Burlington Northern v. White, 548 U.S. 53 (2006).

If a plaintiff is able to show that they have a prima facie case of retaliation, the burden then shifts to the employer to explain how their actions were justified.

Employer Justification

To overcome a prima facie case of retaliation, an employer must proffer a legitimate, nondiscriminatory reason for their adverse employment action.

Employers often defend against retaliation claims by arguing that the adverse action resulted from the employee’s poor work performance. Performance issues that may constitute legitimate, nondiscriminatory reasons for an employer to take adverse action include:

• history of poor work performance,

• attendance issues not protected by the FMLA,

• violations of company policies, or

• conflict with other employees.

If an employer is able to offer a lawful reason for taking adverse action, the burden shifts back to the plaintiff to prove that this explanation is pretextual, and that the true motivation was retaliating for exercise of their FMLA rights.

Establishing Pretext

Plaintiffs can show pretext when there are “weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action.” Jones v. Gulf Coast Health Care of Del., LLC, 854 F.3d 1261, 1274 (11th Cir. 2017).

Courts may consider a range of evidence when determining whether employer’s reasons were pretext. A close temporal relationship between the employee’s request for leave and the employer’s action can help to support a plaintiff’s claim that the employer’s reasons are pretext. Hurlbert v. St. Mary’s Health Care Sys., Inc., 439 F.3d 1286 (11th Cir. 2006).

Other evidence may involve statements or communications by the employer at the time that contradict the reason being given for their actions. In a recent case, Munoz v. Selig Enterprises, the employer claimed that the plaintiff was terminated for insubordination and for attending to personal matters during work. However, in a meeting about the plaintiff’s job performance, management mostly expressed concern over her health-related tardiness and absences. The court found that this contradiction could be sufficient evidence of a pretext for retaliation.

FMLA Retaliation Damages

If the plaintiff prevails in a FMLA retaliation claim, two forms of damages are available:

• Lost pay damages: these damages account for the loss experienced by the employee as a result of the employer’s illegal conduct. 29 U.S.C. §2617(1)(A) provides that employers are liable for damages equal to “any wages, salary, employment benefits, or other compensation” denied to the employee. If no benefits were denied, employer may be liable for other monetary costs imposed on the employee – such as the cost of hiring a caretaker for a sick family member.

• Liquidated Damages: an employee may also recover additional damages imposed by the court, provided that the court finds that the employer did not act in good faith. Liquidated damages in FMLA cases are equal to the amount of compensatory damages awarded.

The law also allows courts to award forms of equitable relief, such as reinstating a terminated employee or promoting an employee who was illegally demoted. However, emotional distress damages and punitive damages are not available for FMLA retaliation claims. Some state family and medical leave laws do allow for recovery of emotional distress or punitive damages for violations of those laws.

Key Takeaways

• The FMLA guarantees covered employees up to 12 weeks of leave for approved purposes. This means that employees who take leave to attend to a family member’s medical condition, to be present for the birth or adoption of a child, or due to their own medical needs are protected from employer retaliation

• If you believe that you have suffered retaliation at the hands of an employer, you can submit a complaint to the Department of Labor’s Wage and Hour Division. You may also opt to litigate, provided you file within the statute of limitations (two years for all violations, or three years for a willful violation).

• Litigating an FMLA retaliation claim requires a plaintiff to show that they engaged in protected behavior, suffered an adverse employment outcome, that these actions were connected, and that any reason the employer offers for their actions is merely a pretext for discrimination.

• Plaintiffs who are able to prevail in FMLA suits may receive liquidated damages on top of their lost compensation, provided that they are able to show the employer did not act in good faith.

Oscar Heanue contributed to this article.

[1] There is also an exception for military families. Covered employees who act as caregivers to a qualified service member recovering from injury or illness may be eligible for up to 26 weeks of leave.