CALL 843-577-5000

How To Spot FMLA Retaliation

If you are granted family leave under the Family Medical Leave Act (FMLA), you have the right to take that leave without any kind of retaliation or reprisal from your employer. However, employers will sometimes attempt to take negative employment action against someone who is taking leave for a variety of reasons. This is why it is important to know how to spot FMLA retaliation. If you suspect that you have experienced negative treatment from your employer after taking FMLA leave, be aware that you may be able to sue for employment discrimination.

What Is FMLA Leave?

The Family Medical Leave Act is specifically for employees who work for covered employers. It allows employees to take leave for up to 12 work weeks in a 12 month period for specified reasons.

Some of these reasons include the following:

  • Pregnancy
  • Caring for a newborn child
  • Adoption and adjustment
  • A serious health condition
  • Caring for a spouse, child, or parent with a serious health condition

Employers are covered if they have 50 or more employees that have been employed for at least 12 months.

It’s important to keep in mind that you don’t have to take all 12 weeks’ worth of leave at once—it’s possible to take intermittent leave and still stay on the job. However, whether you take all of your time at once or intermittently, your employer has an obligation to either restore you to your position or give you an equivalent position upon your return. An equivalent position would have responsibilities, seniority, and pay that is equal to or comparable to what you had before.

Red Flags that Suggest Retaliation

When you take FMLA leave, it is understandable if certain things are different upon your return. However, there are some red flags that can indicate possible retaliation rather than a mere shift in corporate culture or job description.

These are two primary red flags you should look out for:

  • A demotion. If you are demoted upon your return, that is always a proverbial red flag. This is because one cannot be judged on recent work if they have been on leave.
  • Part-time work. Another immediate inclination of bias or discrimination is if you are ‘allowed’ to work part-time, but are still expected to complete full-time work.

Filing a Suit

Generally, if you file suit against your employer over FMLA-based discrimination, the burden of proof is on the employer. It is up to them to show that you did not go through negative employment action (such as firing or demotion) specifically because you took FMLA leave. Or, they must show that you would have experienced that action for a legitimate reason otherwise. For example, if the company is experiencing a downsizing, you might be let go as part of a legitimate initiative to cut staff. However, if your employer cannot meet this burden, you have a good chance to prevail.

Call A South Carolina Employment Discrimination Lawyer

It’s imperative to know how to spot FMLA retaliation. If you believe that you have been retaliated against for taking covered FMLA leave, speak to a South Carolina employment discrimination attorney. Attorney A. Christopher Potts has handled many of these cases, and is happy to work hard on yours. Contact the firm of Hitchcock & Potts today to schedule an appointment.

Leave a Comment