At one point, before congressional action was taken, many employees confronted the impossible choice of caring for an ill loved one (or, their self should they have a serious illness) and keeping a job. To help out in cases like this, Congress passed the Family and Medical Leave Act (FMLA) to allow employees to take up to 12 work weeks of unpaid leave over 12 months to: care for a seriously ill spouse, child or parent; to care for a newborn; to deal with certain emergencies relating to military duties of family members; or to convalesce or recover from the their own serious illness. Many employees offer paid family or medical leave to compete in the marketplace and promote goodwill among employees or the public.
Unfortunately, some employers don’t take well at all to their employees requesting or taking FMLA. Although it is unlawful, they may retaliate against an employee in one or more ways addressed below:
Sometimes an employee might be fired because he or she took or requested to take a family or medical leave. Many employers do not want to leave a post unoccupied when another worker who does not need to take a leave that year might fill said post.
To address this situation, the Family and Medical Leave Act uses the idea of an “adverse employment action.” In other words, to file a lawsuit against the employer for retaliation related to a leave, all the employee needs to show is that the leave was taken or requested, the employee was fire, demoted or otherwise mistreated in a significant way, the employer has 50 or more employees, the employee did at least 1,250 hours of work for that employer in the previous year, and the conclusion is justified that the termination, demotion or mistreatment was a form of retaliation against the employee for taking leave.
If the employer had some reason that it discussed for taking the adverse employment action, then the employee must show that this reason was a cover-up for the retaliation. Although this sounds difficult, in practice it may be enough that the employee was replaced with a less qualified or experienced individual, that someone in management expressed hostility toward taking family or medical leave, or that there is other evidence of pretext.
Losing a position that one’s whole career has led up to can be incredibly painful. Congress believed that this should not be the price of taking a family or medical leave. Federal regulations state that reassigning an employee to a significantly different position against the employee’s will may be considered “retaliation” or an illegal effort to “discourage” taking a leave. For example, being reassigned from managerial work to manual labor, from a day shift to a night shift, or to a far-off branch office or job site could be seen as retaliation.
Being at the center of an organization and dealing with its core business is a vital part of any job. When a boss pushes a worker to the margins, a career can be ruined. Federal and state law protect workers from retaliation short of being fired or demoted, such as having their normal work removed from their duties and given to someone else. At the end of a leave, an employee’s position should be very similar to what it once was in terms of responsibilities and opportunities for distinction and advancement. A position is no longer similar if it differs in conditions, duties, prestige, responsibilities, or pay.
Retaliation for taking family or medical leave can be painful as well as illegal. Saving a job or career from it requires an evaluation by a licensed attorney. If you feel you have been retaliated against by your employer for taking or requesting family or medical leave, contact Leeds Brown Law today via email or by phone at (212) 661-4370 or (516) 873-9550.
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