Don’t retaliate against your employees for taking FMLA time. It seems like a really easy concept. Unfortunately, the truth about retaliation claims is that they are caused by actions that are far subtler and more nuanced that most HR professionals and managers realize.
Here’s an example:
In this example, John wasn’t terminated for taking a leave of absence. He wasn’t disciplined for attendance issues. The action that his manager took against his was subtler. All he did was set up a shift bid. The fact that John wasn’t there to participate wasn’t his fault, right?
But does John have cause to file a retaliation claim? Yes. He took a leave protected under FMLA . . . his manager made it clear that he was unhappy about John’s leave . . . and then as soon as he returned to work, for the first time in his career with the company, he was treated unfairly. John is able to make a direct link between his protected leave of absence and the adverse action.
And that’s the key to retaliation claims. A link between a protected activity and an adverse action against the employee.
Here’s an example for all the HR Generalists out there that might be more familiar:
Is that retaliation? Yes. Katie’s activities are called “Protected Concerted Activity” and they’re protected as part of an employee’s right to unionize.
But it’s the same concept as the FMLA example. She engaged in a protected activity, her manager made it known that he didn’t approve, then took adverse action against her.
Retaliation Claims Are Costly
Retaliation claims, whether the employer is on the right side or not, are costly to fight. Lawyers fees add up quickly, not to mention the time that your HR department will spend documenting and prepping for depositions or a trial. Plus, the public relations issues that it may cause internally among your own employees and externally in your local job market.
So, the goal when it comes to retaliation is PREVENTION.
Preventing Retaliation Claims
How do you prevent retaliation claims? It’s simple . . . train your managers on how to handle FMLA and other medical situations in the workplace.
And I’m not talking about the logistics of timelines and forms that the employee must fill out. Managers don’t need to know the details of FMLA administration.
They need to know two things:
- What they should and should not say to an employee
- What is considered “adverse action”
What You Should and Should Not Say
You know when you take a CPR class and they make you go through a scenario where you have to point at someone in the crowd and say “You - call 911”? It seems so silly to have to practice saying that, but it’s been proven to make a difference in real emergencies when you’re flustered or under stress.
It’s the same with training your managers how to respond to employees. Most likely, your managers are very busy people. They’re doing their own work, managing the work of their entire staff, trying to meet their quotas, coaching their teams, setting and adjusting schedules, submitting timecards, etc. Some days they’re overwhelmed . . . and that’s when their good intentions and compassion for their employees is going to be clouded by the stress they’re under. They’re not bad managers . . . they’re busy managers.
That’s why training is so important.
They need training that walks them through silly exercises that stick with them so that when the situation presents itself in real life they know exactly what to say.
What Is Considered Adverse Action
Termination and formal disciplinary action are the more obvious types of retaliatory actions, but there are others that are less obvious but just as risky, including moving the employee to a less-desirable shift or denying PTO (like in the examples above) or something as non-confrontational as excluding the employee from team meetings or team social events. Does the whole team go out for a drink on Fridays after work? Excluding an employee from that type of event could be seen as retaliation even though it’s optional and outside of working hours. Be sure to train your managers on how to treat everyone fairly, especially when employees are engaging in protected activities.
FMLA retaliation is tricky to navigate and requires training for your HR staff and leaders.
We hope you enjoyed reading our article on FMLA Retaliation Claims!
Leave Solutions is based in Milwaukee, WI and helps employers with their FMLA and leave of absence processes from a Human Resources perspective.
Contact us today at firstname.lastname@example.org if you have questions on retaliation claims or other topics.