FMLA Retaliation: Your Rights If Punished for Taking Leave

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Understanding Your FMLA Rights

The Family and Medical Leave Act (FMLA) stands as a cornerstone of federal worker protection, offering eligible employees vital job-protected leave for significant family and medical events. This law ensures that workers don’t have to choose between job security and tending to pressing health needs or family responsibilities.

A critical component of the FMLA is its robust protection against employer retaliation. Employers are strictly prohibited from punishing employees simply because they requested or took FMLA leave.

This article provides an overview of FMLA retaliation, explaining what it is, how to recognize it, the legal rights afforded to employees, and the steps to take if you believe you’ve faced punishment for exercising your FMLA rights.

What is the FMLA?

The Family and Medical Leave Act is a federal law enacted in 1993 that requires certain employers to provide eligible employees with unpaid, job-protected leave for specific family and medical reasons. The core purposes of the FMLA are to help employees balance work and family responsibilities by allowing them to take reasonable unpaid leave for certain family and medical reasons, and to promote stability and economic security of families.

Key FMLA Protections

Job Restoration: Upon returning from FMLA leave, an employee must be restored to their original job or to an “equivalent” position. An equivalent position is one that is virtually identical to the employee’s former position in terms of pay, benefits, shift, location, and other terms and conditions of employment.

Health Benefits Continuation: Covered employers must maintain the employee’s group health insurance coverage during FMLA leave under the same terms and conditions as if the employee had been continuously employed. The employee generally must continue to pay their share of the premium costs.

Paid Leave Interaction: While FMLA leave itself is unpaid, the law permits an employee to choose, or the employer to require the employee, to use accrued paid leave—such as vacation time, sick leave, or paid time off (PTO)—concurrently with FMLA leave. When paid leave is used for an FMLA-covered reason, the leave remains protected under the FMLA.

This interaction between paid and unpaid leave can sometimes lead to misunderstandings. An employer might incorrectly administer paid leave balances or pressure an employee regarding the use of paid time, which could potentially interfere with FMLA rights by discouraging the employee from taking necessary leave.

Who is Covered by FMLA?

FMLA protections apply only if both the employer and the employee meet specific eligibility criteria.

Employer Coverage

The FMLA applies to:

• Private-sector employers who employ 50 or more employees for at least 20 workweeks in the current or preceding calendar year. This includes joint employers and successors of covered employers.
• Public agencies, including federal, state, and local government employers, regardless of the number of employees they employ.
• Local educational agencies (schools), including public school boards, public elementary and secondary schools, and private elementary and secondary schools, regardless of the number of employees.

Employee Eligibility

To be eligible for FMLA leave, an employee must meet all of the following conditions:

• Work for a covered employer.
• Have worked for the employer for at least 12 months. These 12 months don’t need to be consecutive. Generally, employment within the past seven years counts, with exceptions for military service obligations or specific agreements.
• Have worked at least 1,250 hours for the employer during the 12-month period immediately preceding the start of the leave. Importantly, hours paid during vacation, sick leave, PTO, or prior FMLA leave don’t count towards the 1,250-hour requirement; only hours actually worked are counted. Special rules apply for airline flight crew members.
• Work at a location where the employer employs at least 50 employees within a 75-mile radius.

The multi-faceted nature of employee eligibility can make determining eligibility complex. An employee might work for a large national corporation but be ineligible if their specific office or worksite is small and geographically isolated, or if they are a part-time worker who hasn’t met the 1,250-hour threshold in the preceding year.

When Can You Take FMLA Leave?

Eligible employees may take up to 12 workweeks of FMLA leave in a 12-month period for the following reasons:

Birth, Adoption, or Foster Care Placement

To bond with a newborn child within one year of birth, or to bond with a child placed with the employee for adoption or foster care within one year of placement. This applies equally to all parents. Leave can also be taken before placement for necessary activities like court appearances, counseling, or travel related to the adoption/foster care process.

Employee’s Own Serious Health Condition

When the employee is unable to perform the essential functions of their job due to a serious health condition.

A “serious health condition” involves either inpatient care (an overnight stay in a hospital, hospice, or residential medical care facility) or “continuing treatment” by a health care provider.

“Continuing treatment” can include:

• A period of incapacity of more than three consecutive full calendar days, plus subsequent treatment
• Any period of incapacity due to pregnancy or for prenatal care
• Any period of incapacity or treatment for a chronic serious health condition that requires periodic visits to a health care provider, continues over an extended period, and may cause episodic incapacity
• A period of incapacity which is permanent or long-term due to a condition for which treatment may not be effective
• Any period of absence to receive multiple treatments for restorative surgery or for a condition that would likely result in incapacity of more than three days if not treated

Both physical and mental health conditions can qualify as serious health conditions. Examples include severe anxiety, major depressive disorder, bipolar disorder, and PTSD.

Care for a Family Member with a Serious Health Condition

To care for an immediate family member (spouse, child, or parent) who has a serious health condition. Note that “parent” under FMLA does not include a parent-in-law.

“Care” includes providing basic medical, hygienic, nutritional, or safety needs, transportation, physical care, or psychological comfort and reassurance.

A “child” includes a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis (acting in the place of a parent). Leave is generally for a child under 18, but can be taken for a child 18 or older if they are “incapable of self-care because of a mental or physical disability” at the time leave is to commence.

Military Family Leave

Qualifying Exigency Leave: For certain urgent needs arising because the employee’s spouse, son, daughter, or parent is a military member on covered active duty or call to covered active duty status (or has been notified of an impending call or order to covered active duty). Examples include making alternative childcare arrangements, attending military ceremonies, or making financial or legal arrangements related to the deployment.

Military Caregiver Leave: An eligible employee who is the spouse, son, daughter, parent, or next of kin of a covered servicemember may take up to 26 workweeks of leave during a single 12-month period to care for the servicemember with a serious injury or illness incurred or aggravated in the line of duty on active duty. This also covers care for certain veterans.

FMLA Leave Structure

FMLA leave doesn’t always have to be taken in one continuous block. When medically necessary (or for qualifying exigency or military caregiver leave), employees may take leave intermittently (in separate blocks of time, from an hour to weeks) or on a reduced leave schedule (working fewer hours per day or week).

For example, an employee might need a few hours off each week for ongoing therapy or several days off during flare-ups of a chronic condition. However, intermittent or reduced schedule leave for bonding with a new child requires mutual agreement between the employer and employee.

While essential for managing many health conditions, intermittent leave can present scheduling complexities for employers. This operational challenge might motivate some employers to improperly discourage or deny requests for intermittent leave, or penalize employees who use it frequently, potentially resulting in FMLA interference or retaliation.

What is FMLA Retaliation?

Employer Interference and Retaliation Prohibited

The FMLA provides strong protections against employer actions that undermine an employee’s ability to use their leave rights. The specific regulation detailing these protections is found at 29 CFR § 825.220. This regulation establishes two main categories of prohibited employer conduct: interference and retaliation/discrimination.

Interference: It is unlawful for any employer to “interfere with, restrain, or deny the exercise of or the attempt to exercise” any right provided by the FMLA. Examples of interference include:

• Refusing to authorize FMLA leave when an employee is eligible and has a qualifying reason
• Discouraging an employee from using FMLA leave (e.g., suggesting it will harm their career, making threats)
• Manipulating circumstances to prevent eligibility or avoid FMLA responsibilities, such as transferring employees to keep a worksite below the 50-employee threshold, changing essential job functions to preclude leave, or reducing hours to prevent meeting the 1,250-hour requirement
• Failing to provide required FMLA notices to employees regarding their rights and responsibilities
• Making an employee work while on FMLA leave (beyond minimal contact)

Retaliation/Discrimination: The FMLA also prohibits employers from “discharging or in any other way discriminating against” any individual for opposing practices made unlawful by the Act. Crucially, employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, firing, promotions, or disciplinary actions. FMLA leave also cannot be counted under “no-fault” attendance policies, where employees receive points for absences regardless of the reason.

It’s important to recognize the distinction between these two types of claims:

• Interference focuses on whether the employer denied or obstructed the employee’s entitlement to FMLA benefits (like the leave itself or reinstatement).
• Retaliation focuses on whether the employer took negative action because the employee engaged in protected FMLA activity.

While often related, the legal analysis and proof required for each can differ. For instance, an interference claim might focus simply on whether an entitled benefit was denied, regardless of the employer’s intent, whereas a retaliation claim typically requires showing the employer acted with a retaliatory motive. An employee might experience one or both types of violations simultaneously, such as being fired after requesting leave but before taking it, which could be both interference (denying the leave) and retaliation (punishing the request).

Waiver Prohibited: Employers cannot induce employees to waive their future FMLA rights. For example, an employer cannot offer a different benefit in exchange for an employee agreeing not to take FMLA leave they might need later. However, this does not prevent employees from voluntarily settling or releasing FMLA claims based on past employer actions, without needing approval from the Department of Labor or a court. Accepting a light-duty assignment while recovering does not waive an employee’s right to full reinstatement later, though the right to reinstatement ends at the conclusion of the applicable FMLA leave year.

Actions Protected from Retaliation

The FMLA protects employees (and sometimes even non-employees or prospective employees) from retaliation for engaging in certain “protected activities.” These include:

Requesting or Taking FMLA Leave: The most fundamental protected activity is simply asking for or using FMLA leave for a qualifying reason.

Opposing Unlawful Practices: Complaining about or opposing any practice the individual reasonably believes is unlawful under the FMLA. This protection is broad and covers more than just formal legal action. It includes internal complaints made to supervisors or human resources, even if informal or verbal. It can also include actions like refusing to follow an order reasonably believed to be discriminatory under FMLA, advising an employer on FMLA compliance, or resisting FMLA-related interference. The protection applies even if the employee’s belief about the violation turns out to be mistaken, as long as the belief was reasonable.

Filing Charges or Complaints: Filing a formal charge or complaint alleging an FMLA violation, either internally with the employer, with the U.S. Department of Labor’s Wage and Hour Division (WHD), or in court.

Participating in FMLA Proceedings: Instituting any proceeding under the FMLA, giving (or preparing to give) information in connection with an FMLA inquiry or proceeding, or testifying (or preparing to testify) in such an inquiry or proceeding. This includes cooperating with a WHD investigation or providing information during an employer’s internal investigation of an FMLA matter.

Recognizing Retaliatory Actions

Defining Adverse Employment Actions

For an employer’s action to be considered FMLA retaliation, it must qualify as an “adverse employment action.” The legal standard for what constitutes an adverse action in the retaliation context is broader than just actions that affect pay or job title. Generally, an adverse employment action is any action taken by the employer that “well might have dissuaded a reasonable worker” from engaging in protected activity, such as requesting FMLA leave or complaining about a violation.

The action must be “materially adverse,” meaning it is significant and not just a trivial annoyance, a minor inconvenience, or a simple alteration of job duties. It must have a negative impact on the terms, conditions, or privileges of employment or be likely to deter employees from exercising their rights. The focus is on whether the action could chill a reasonable employee’s willingness to assert their FMLA rights. This standard recognizes that retaliation can take many forms, some less obvious than others, but all potentially harmful to an employee’s willingness to stand up for their rights.

Common Examples of Adverse Actions

Adverse employment actions can range from clear, ultimate decisions to more subtle forms of mistreatment. Examples include:

Overt Actions:

• Termination / Firing / Discharge
• Demotion
• Reduction in Pay, Salary, or Hours
• Suspension (especially without pay)
• Denial of Promotion or Raise
• Refusal to Reinstate to Same/Equivalent Position After Leave
• Layoff
• Refusal to Hire
• Disciplinary Actions (e.g., write-ups)

Subtle Actions:

• Unwarranted Negative Performance Evaluations
• Transfer to a Less Desirable Position, Shift, or Location
• Increased Scrutiny or Micromanagement
• Exclusion from Meetings, Projects, Training, or Social Events
• Removal or Reduction of Job Responsibilities
• Harassment, Verbal or Physical Abuse
• Threats (e.g., of termination, discipline, reporting immigration status)
• Counting FMLA Leave Under “No-Fault” Attendance Policies
• Discouraging Use of FMLA Leave
• Unfavorable Job References
• Making Work More Difficult (e.g., burdensome schedule, denying resources)
• Blacklisting
• Loss of Seniority

It is important to recognize that retaliation isn’t always a single, dramatic event like termination. Sometimes, it manifests as a series of smaller, negative actions that occur after an employee engages in FMLA-protected activity. A sudden negative performance review after years of positive ones, being excluded from important meetings previously attended, or facing constant nitpicking and micromanagement upon return from leave could, when viewed together, constitute a pattern of retaliatory conduct designed to punish the employee or make their work life intolerable.

Proving FMLA Retaliation: The Legal Standard

Successfully bringing an FMLA retaliation claim involves navigating specific legal standards and burdens of proof. While direct evidence of retaliation (like an employer explicitly stating, “I’m firing you because you took FMLA leave”) is rare, most cases rely on circumstantial evidence to demonstrate the employer’s unlawful motive.

Establishing a Basic Case (Prima Facie Case)

To initiate a retaliation claim using circumstantial evidence, an employee generally needs to establish a “prima facie” case. This involves showing three key elements:

1. Protected Activity: The employee engaged in an activity protected under the FMLA (e.g., requesting leave, taking leave, filing a complaint).
2. Adverse Employment Action: The employee suffered an adverse employment action.
3. Causal Connection: There is a causal link between the protected activity and the adverse employment action.

Understanding the “Causal Connection”

The crucial element linking the protected activity and the adverse action is causation. The employee must show that the adverse action was likely taken because of their FMLA activity. This doesn’t necessarily mean the FMLA activity was the only reason, but that it played a role in the employer’s decision and the two events are not completely unrelated.

Temporal Proximity: One of the most common ways to suggest a causal connection is through “temporal proximity”—the closeness in time between the protected FMLA activity and the adverse action. If an employee is fired, demoted, or disciplined shortly after requesting or returning from FMLA leave, this timing can create an inference of retaliation.

Courts often consider actions taken within days or weeks as strong evidence, while a gap of 1-3 months may still be significant but requires more supporting evidence. Gaps longer than three months are often considered too long to establish causation based on timing alone, unless other evidence exists.

However, relying solely on timing can be risky. Temporal proximity is less persuasive if the employer can demonstrate that the decision-making process for the adverse action began before the employee engaged in the protected FMLA activity, or if there is substantial, documented evidence of legitimate reasons for the action (like poor performance or misconduct) that predate the FMLA leave. The entire sequence of events, not just the gap between FMLA activity and the adverse action, is important.

Other Evidence of Causation: Beyond timing, other types of evidence can help establish the causal link:

• Statements: Oral or written statements by supervisors or managers showing antagonism towards the employee’s FMLA leave or linking the leave to the adverse action (e.g., comments about the negative impact of absences, threats, statements like “I don’t get mad, I get even” regarding complaints).
• Comparative Evidence: Showing that similarly situated employees who did not engage in FMLA-protected activity were treated more favorably under similar circumstances.
• Inconsistent Explanations: The employer providing shifting, contradictory, or vague reasons for the adverse action.
• Departure from Policy: The employer deviating from its own established policies or practices when taking the adverse action against the employee who took leave.

The Employer’s Response and Proving Pretext

Once an employee establishes a prima facie case, the legal burden often shifts to the employer under a framework established by the Supreme Court case McDonnell Douglas Corp. v. Green.

Employer’s Burden: The employer must articulate a legitimate, non-retaliatory reason for the adverse employment action. Common reasons include poor job performance, violation of company policy, misconduct, attendance issues unrelated to FMLA leave, or business restructuring/layoffs.

Employee’s Burden (Pretext): If the employer provides such a reason, the burden shifts back to the employee to prove that the employer’s stated reason is actually a “pretext”—a false or fabricated justification designed to hide the true retaliatory motive.

Proving pretext is often the central battleground in FMLA retaliation cases, as employers can usually offer some plausible non-retaliatory explanation. The employee must present evidence suggesting the employer’s reason is weak, implausible, inconsistent, contradictory, or otherwise unworthy of belief.

Evidence used to establish the initial causal connection (like suspicious timing, incriminating statements, comparative evidence showing disparate treatment, shifting employer explanations, or deviations from standard procedures) can also be used to demonstrate pretext. For example, if an employer claims termination was due to poor performance, but the employee had consistently positive reviews until after taking FMLA leave, and coworkers with similar performance who didn’t take leave were not disciplined, this could strongly suggest pretext.

Causation Standard: There is some variation among courts regarding the precise standard of causation an employee must ultimately prove for an FMLA retaliation claim. Some courts apply a “motivating factor” standard, meaning the employee only needs to show that the FMLA activity was one factor that motivated the adverse action, even if other legitimate factors were also present. Other courts apply a stricter “but-for” causation standard. Under this standard, the employee must show that the adverse action would not have occurred but for their engagement in FMLA-protected activity. The “but-for” standard presents a higher hurdle for employees.

Because the applicable standard can differ depending on the federal circuit court jurisdiction, understanding the specific standard used in the relevant geographic area is important, often requiring legal counsel.

Gathering Evidence for Your Claim

Building a strong FMLA retaliation case heavily relies on gathering and preserving compelling evidence. Since employers rarely admit to retaliation directly, circumstantial evidence documented meticulously becomes paramount.

Key types of evidence to collect include:

Communications

Save all emails, text messages, voicemails, chat logs, memos, or letters related to the FMLA leave request, the employer’s response, any discussions about the leave, and any negative interactions, instructions, or disciplinary actions that followed.

It is wise to forward important work emails to a personal email account or save documents to a personal device or cloud storage, as access to work systems is often lost immediately upon termination.

FMLA Documentation

Keep copies of the leave request form submitted, any medical certifications provided to the employer, and all notices received from the employer regarding FMLA eligibility, rights and responsibilities, and leave designation.

Performance Records

Gather copies of performance evaluations from before, during (if applicable), and after the FMLA leave. Look for inconsistencies or sudden negative shifts in ratings or comments. Also preserve any records of past commendations, awards, bonuses, or positive feedback.

Disciplinary Records

Obtain copies of any written warnings, disciplinary notices, performance improvement plans (PIPs), or termination letters.

Compensation Records

Collect pay stubs, commission statements, bonus records, or other documents showing salary, hours, and benefits to prove lost wages or adverse changes in compensation.

Witness Information

Identify colleagues, supervisors, HR personnel, or even clients/customers who may have witnessed the retaliatory actions, heard relevant statements, or can attest to changes in treatment or inconsistencies in the employer’s stated reasons for adverse actions. Note their names and contact information. While obtaining formal statements might be challenging due to colleagues’ fear of retaliation, identifying potential witnesses is a crucial first step.

Personal Log/Journal

Maintain a detailed, contemporaneous log of events. For each incident of suspected retaliation, record the date, time, location, what happened, who was involved (including witnesses), and why it felt retaliatory. Consistent, factual notes made close in time to the events are more credible than later recollections.

Company Policies

Secure copies of the relevant employee handbook sections or standalone policies covering FMLA, attendance, discipline, performance evaluations, internal complaints, and social media. These can show whether the employer followed its own procedures.

Comparative Evidence

Gather information (if possible and permissible) about how similarly situated coworkers who did not take FMLA leave were treated regarding performance, discipline, promotions, assignments, etc. Demonstrating disparate treatment can be powerful evidence of pretext.

Remedies If You Prove Retaliation

If an employee successfully proves that their employer retaliated against them for exercising FMLA rights, the law provides several remedies designed to compensate the employee for their losses and, ideally, make them “whole”. The specific remedies available are outlined in the FMLA statute itself, at 29 U.S.C. § 2617. Potential remedies include:

Job Reinstatement

If the employee was terminated, demoted, or transferred due to retaliation, a court can order the employer to restore the employee to their original position or an equivalent one, with the same pay, benefits, seniority, and other terms and conditions of employment. Reinstatement is often considered the preferred remedy where feasible.

Back Pay

This covers the wages, salary, overtime, bonuses, commissions, and the value of lost benefits (like health insurance premiums paid by the employee, lost vacation/sick time, lost pension contributions) that the employee lost due to the employer’s unlawful retaliation, calculated from the date of the violation up to the date of the court judgment. Interest is typically added to the back pay award.

Front Pay

If reinstatement is not a practical option (e.g., the job no longer exists, or the relationship between the employee and employer is too damaged), the court may award front pay. Front pay compensates the employee for estimated future lost earnings and benefits for a reasonable period, until the employee could be expected to find comparable employment.

Liquidated Damages

The FMLA provides for an additional award of liquidated damages, which is an amount equal to the sum of the back pay (plus interest) and any actual monetary losses sustained (such as the cost of providing care for a family member if leave was denied). These damages effectively double the employee’s monetary recovery.

Liquidated damages are awarded automatically in successful FMLA cases unless the employer can prove to the court’s satisfaction that its violation occurred in “good faith” and that it had “reasonable grounds for believing” its actions did not violate the FMLA. The burden of proving this defense rests entirely on the employer. This presumption in favor of liquidated damages significantly strengthens an employee’s position.

Attorneys’ Fees and Costs

If an employee wins their FMLA lawsuit, the court must award reasonable attorneys’ fees, expert witness fees, and other costs of the action to be paid by the employer. This provision makes it more feasible for employees to pursue their rights legally.

Other Equitable Relief

Courts can order other appropriate relief, such as requiring the employer to grant FMLA leave that was improperly denied or to correct employment records.

It is important to note that the FMLA statute itself generally does not allow for the recovery of damages for emotional distress or punitive damages (damages intended to punish the employer). However, if the employer’s retaliatory conduct also violates other federal laws (like the Americans with Disabilities Act – ADA) or state anti-discrimination or tort laws, these types of damages might be recoverable under those separate legal claims. This highlights the potential value of assessing whether other laws were violated in addition to the FMLA.

What to Do If You Suspect FMLA Retaliation

If you believe you’re being punished for requesting or taking FMLA leave, taking prompt and careful steps is crucial. Here is a general guide:

Document Everything Meticulously

This is the most critical first step. Keep a detailed, factual log of every incident of suspected retaliation. Note dates, times, locations, who was involved, what was said or done, and any witnesses. Preserve copies of all relevant documents: emails, texts, performance reviews (before and after leave), disciplinary notices, FMLA paperwork, pay stubs, and company policies. Store copies securely outside of the workplace. Accurate, contemporaneous documentation is powerful evidence.

Review Company Policies and Your FMLA Paperwork

Consult the employee handbook or company intranet for policies regarding FMLA, attendance, discipline, performance management, and internal complaint procedures. Review all FMLA notices (Eligibility, Rights & Responsibilities, Designation) and medical certifications related to the leave in question. Understanding the official rules and the specifics of the approved leave can help identify if the employer deviated from policy or the terms of the approved leave.

Consider Reporting Internally (If Appropriate)

Depending on the workplace environment and company procedures, consider reporting the suspected retaliation to the Human Resources department or a trusted manager. If reporting internally, do so in writing (e.g., email) and keep a copy. This provides the employer an opportunity to investigate and potentially resolve the issue. It also creates a record that you opposed the suspected retaliatory conduct, which is itself a protected activity. However, carefully assess whether internal reporting is safe and likely to be productive in your specific situation.

Consult an Employment Law Attorney

It is highly advisable to consult with an attorney experienced in FMLA and employment retaliation cases. An attorney can evaluate the facts and evidence, explain your rights under federal and potentially state laws, advise on the best strategy (including whether and how to report internally or file externally), help gather further evidence, communicate with the employer, and represent you in negotiations or legal proceedings.

File a Complaint with the U.S. Department of Labor (DOL)

Employees have the right to file a complaint with the Wage and Hour Division (WHD) of the U.S. Department of Labor, the federal agency responsible for enforcing the FMLA for most employers.

How to File: Complaints can be initiated by calling the WHD toll-free helpline at 1-866-4US-WAGE (1-866-487-9243) or by contacting them online through their complaint portal. You will need to provide personal contact information, employer details, job and pay information, and specifics about the suspected FMLA violation.

WHD Process: The WHD investigates complaints confidentially. They may interview you and your employer, review records, and determine if a violation occurred. If a violation is found, WHD will attempt to resolve it, which may include seeking back wages or other remedies. If resolution isn’t reached, the DOL may pursue legal action against the employer.

Statute of Limitations: Generally, an FMLA complaint (either with DOL or a private lawsuit) must be filed within two years from the date of the last alleged violation. This deadline extends to three years if the violation was “willful” (meaning the employer knew or showed reckless disregard for whether its conduct was unlawful).

Employees facing potential retaliation have multiple avenues for seeking recourse: internal reporting, filing a DOL complaint, and/or pursuing a private lawsuit. The best approach depends on the specifics of the situation, the employer’s culture and responsiveness, and your goals. Given the complexities and deadlines involved, consulting with an employment law attorney early is often the most effective way to navigate these options.

It is also worth noting that employers have a right to investigate suspected abuse of FMLA leave, provided they do so based on a reasonable, good-faith belief and conduct a thorough, fair, and consistent investigation. However, such investigations must be handled carefully to avoid interfering with legitimate FMLA rights or creating the appearance of retaliation. Poorly conducted investigations can themselves become evidence supporting an employee’s retaliation claim.

FMLA Retaliation in the Real World

FMLA retaliation is not just a theoretical legal concept; it is a significant issue faced by employees across the country.

Prevalence

Data indicates that retaliation is a major concern in the workplace. Across all anti-discrimination statutes enforced by the Equal Employment Opportunity Commission (EEOC), retaliation is consistently the most frequently alleged basis of discrimination. In Fiscal Year 2022, retaliation charges constituted 55.8% of all charges filed with the EEOC. While these statistics cover multiple laws, they highlight the general tendency for employees to face negative consequences after asserting their rights.

Specific FMLA enforcement data from the Department of Labor’s Wage and Hour Division (WHD) also shows ongoing issues. Each year, WHD concludes hundreds of FMLA compliance actions where violations were found. In Fiscal Year 2023, WHD found violations in 334 FMLA compliance actions, affecting 395 employees and resulting in nearly $1 million ($987,782) in recovered back wages. In prior recent years (FY2019-FY2022), annual back wage recovery for FMLA violations ranged from approximately $870,000 to $1.9 million.

Common FMLA violations identified in WHD actions include improper denial of leave, discrimination (including disciplinary actions related to leave), failure to reinstate employees correctly after leave, and termination related to FMLA leave. For example, in FY 2023, WHD found 142 instances of discrimination/discipline related to FMLA and 71 terminations related to FMLA.

Illustrative Case Examples

Court decisions provide concrete examples of how FMLA retaliation claims play out:

Kibbie v. Hays Consolidated Independent School District: An HR employee took FMLA leave for surgery. While she was out, her employer claimed to find performance issues and posted her job as vacant. Upon her return, she was placed on administrative leave and then terminated, despite the employer initially saying she would have a chance to respond to the allegations. The court found enough evidence of potential pretext (suspicious timing, posting the job, not allowing a response) to let the retaliation claim proceed to a jury, even though the employer cited poor performance as the reason for termination. This case shows how inconsistent employer actions and close timing can undermine a seemingly legitimate reason for termination.

Ziccarelli v. Dart: A long-term employee with a history of using FMLA leave alleged that an FMLA manager warned him not to take additional FMLA time, stating he would face discipline if he did. Feeling threatened, the employee retired instead of taking further leave. He sued for FMLA interference (discouragement) and retaliation (constructive discharge). An appeals court reversed the initial dismissal, finding that the manager’s alleged threat, if true, could constitute unlawful interference by chilling the employee’s willingness to exercise FMLA rights, and could potentially support a retaliation claim if it effectively forced the employee to retire. This highlights that even verbal discouragement can be an FMLA violation.

Anderson v. Nations Lending Corporation: An employee was terminated just four days after returning from FMLA leave. However, the employer presented undisputed evidence that it had discovered significant performance deficiencies before she went on leave, had followed its standard investigation procedures upon her return, and based the termination on those documented performance issues. The court ruled in favor of the employer, finding no causal link between the FMLA leave and the termination, despite the extremely close timing. This demonstrates that a well-documented, legitimate, non-retaliatory reason established prior to or independent of the FMLA leave can defeat a retaliation claim.

Smothers v. Solvay Chemicals, Inc.: A Wyoming trona miner with a neck condition requiring intermittent FMLA leave was fired, ostensibly for a safety rule violation. Evidence suggested the employee faced pressure about his FMLA use, including suggestions to change shifts which would reduce his pay, and that other employees who committed safety violations were not terminated. A jury found in favor of the employee on his FMLA retaliation claim, awarding over $740,000 in lost wages and benefits. The court then added an equal amount in liquidated damages, resulting in a total judgment exceeding $1.48 million, plus attorneys’ fees. This case underscores the substantial financial liability employers can face for FMLA retaliation, particularly when liquidated damages are awarded.

Numerous other reported settlements and verdicts also show significant recoveries in FMLA and other retaliation cases, sometimes reaching six or even seven figures.

The potential for significant financial awards—including back pay, potentially front pay, mandatory liquidated damages in many cases, and attorneys’ fees—emphasizes the serious consequences for employers who violate the FMLA’s anti-retaliation provisions. It is crucial for employers to understand and respect employee FMLA rights and to ensure that managers are trained to avoid any actions that could be construed as interference or retaliation.

Additional Resources

For more information about FMLA retaliation and your rights, consider these resources:

U.S. Department of Labor Resources

• DOL FMLA Main Page
• FMLA Employee Guide
• FMLA Fact Sheets
• WHD Complaint Process

Legal Information

• FMLA Regulations – 29 CFR Part 825
• FMLA Statute – 29 U.S.C. § 2601 et seq.

Legal Help

• American Bar Association – Find Legal Help
• Legal Aid – Find Local Legal Aid Office
• National Employment Lawyers Association – Find an Attorney

By understanding your rights and taking prompt action if you suspect retaliation, you can better protect yourself against unlawful employer conduct and preserve your FMLA protections.

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