FMLA Retaliation
Protect Your Rights with an FMLA Retaliation Lawyer
Workplace retaliation is against the law. You have the right to take family leave without retaliation.
Your employer cannot refuse to authorize your leave, discourage you from taking leave, or factor in your leave when making employment decisions.
If your rights have been violated, a workplace retaliation lawyer can help.
Contact FMLA retaliation attorney Charles Joseph for a free consultation to protect your rights. Charles Joseph has over twenty years of experience with retaliation cases, and his firm has recovered more than $200 million for clients. Reach out today for a free, confidential consultation.
Know Your Rights – What is FMLA Retaliation?
The Family and Medical Leave Act (FMLA) provides job protection for up to twelve weeks each year for eligible employees. Workers can use FMLA for parental leave, for a serious health condition, or to care for an immediate family member with a serious health condition.
The Family and Medical Leave Act of 1993 covers qualifying employees who work for eligible companies. Before taking FMLA leave, employees must make sure that they qualify.
While FMLA provides job protection, it does not provide paid leave. However, New York’s new Paid Family Leave Act provides paid leave.
What is FMLA retaliation? Your employer cannot treat you unfavorably for requesting or using FMLA or NYPFL.
Qualifying for FMLA
The Family and Medical Leave Act applies to all public agencies, all public and private K-12 schools, and companies with 50 or more employees.
In order to take FMLA leave, employees must have worked for their employer for at least 12 months (a minimum of 1,250 hours in the most recent 12 months), and work at a location where the company employs 50 or more employees within a 75-mile radius.
Employees can use FMLA to cover the following:
- The birth and care of the newborn child of an employee
- Caring for an adopted child or foster care
- A serious health condition that makes the employee unable to work
- Caring for an immediate family member, such as a spouse, child, or parent, who has a serious health condition.
- Caring for a service member with a serious injury or medical condition, or covering a “qualifying exigency” caused by the foreign deployment of a spouse, son, daughter, or parent.
Both men and women are eligible to take FMLA for parental leave.
Examples of FMLA Leave
Employees who qualify under the Family and Medical Leave Act can take leave for several reasons. The leave does not have to be continuous, but employees cannot take more than 12 weeks of leave during a 12-month period.
Examples of FMLA Leave:
- A new father who has been at a large company for three years uses FMLA to take three weeks of unpaid leave for the birth of his child. Although the leave is unpaid, he can combine paid sick or vacation time with FMLA to cover the cost of the leave.
- After learning her father has emphysema, a teacher takes twelve weeks off under FMLA to help care for her father.
- A pregnant woman dealing with medical complications from her pregnancy takes FMLA for the last two weeks of her pregnancy while she is on bed rest, and then uses the remaining 10 weeks to care for her newborn and recover from birth.
- After receiving a cancer diagnosis, a government employee asks to take time off during the workweek to receive chemotherapy treatments. He works with his agency to arrange for Fridays off for the next three months for his medical treatments.
- The parent of a service member takes FMLA to care for her son, who recently returned from a deployment with a serious injury. Military Family Leave under FMLA can be for up to 26 weeks.
Military Family Leave
FMLA also provides special protections for military family leave. Eligible employees can take 12 weeks of FMLA leave for any “qualifying exigency” caused by the foreign deployment of a spouse, son, daughter, or parent.
Qualifying situations include making alternative childcare arrangements for the deployed service member’s child, attending military ceremonies or briefings, or making financial or legal arrangements for the service member’s absence.
FMLA also provides protections for military caregivers. Eligible employees can take up to 26 weeks of leave to care for a covered servicemember who has a serious injury or illness. The service member must be the spouse, child, parent, or next of kin of the caregiver.
FMLA Notice
Employees who would like to take FMLA leave must comply with their employer’s customary requirements for requesting leave. They may also be required to provide enough information for their employer to determine whether the Family and Medical Leave Act applies to the leave request.
In general, employees should request leave 30 days in advance when they can anticipate the need for leave. For unforeseeable leave requests, employees should provide notice as soon as possible.
Employers are also required to provide notice about the FMLA. Covered employers must display a general notice about the FMLA and notify employees about their eligibility status.
If employers fail to follow the notice requirements, this may constitute an interference with, restraint, or denial of the employee’s FMLA rights. Employees can file a complaint with the Wage and Hour Division of the Department of Labor for compensation and benefits lost because of this violation, as well as actual monetary losses.
FMLA Retaliation
Employees who take FMLA leave are protected against retaliation from their employers.
The law entitles eligible employees to return to their jobs under the same conditions as if they had not taken leave. The FMLA also states that employers must continue group health insurance coverage during the leave period.
Employers cannot interfere with or deny an employee’s right to leave. They also cannot discriminate against any person for reporting or complaining about an unlawful FMLA practice.
It is illegal for employers to retaliate against employees who take leave under the FMLA, and they cannot fire employees for exercising their rights.
Prohibited conduct includes:
- Refusing to authorize leave when an employee is eligible under the law
- Discouraging employees from taking leave
- Altering an employee’s work hours to void their eligibility for rights
- Counting leave as an absence for attendance policies
- Counting a request for leave or leave itself as a negative factor in making employment decisions like hiring, promotions, or raises.
If your employer has violated your FMLA rights, contact a retaliation lawyer for a free consultation.
How to File a Complaint About FMLA Violations
Covered employees can file a complaint if their employer has violated their federal or state leave act rights. This can include withholding information about the law, refusing to authorize leave, or discriminating against employees who take leave.
The Wage and Hour Division of the U.S. Department of Labor administers and enforces the Family and Medical Leave Act. You can file an FMLA complaint with the Wage and Hour Division, which will investigate. If the Wage and Hour Division cannot resolve the violation, they can force your employer to comply through the court system.
Employees may also be able to bring a private civil action against an employer for FMLA violations. Generally, employees have two years from the date of the violation to bring a claim.
An FMLA lawyer can help protect your rights. Contact NYC employment lawyer Charles Joseph for a free consultation today.
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