FMLA Retaliation Claims

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:

John is a long-term employee with your company. He requests a 3-week leave of absence for shoulder surgery and is approved under FMLA. His manager adjusts the department schedule, including picking up a few extra shifts to cover the work, and put John back on the schedule in 3 weeks. At John’s 3-week check up he finds out that his healing is going slower than expected and the doctor extends his leave by another 3 weeks. His manager has to scramble to adjust the schedule and again has to pick up a few of John’s shifts to avoid too much overtime pay for the other employees. At John’s next check up his doctor extends his leave for another 2 weeks, forcing his manager to make last-minute adjustments again. John keeps in touch with his manager during his leave and after the last extension his manager was not shy about sharing he frustration with John’s leave, including making the comment “I hope you’re enjoying your summer vacation while the rest of us are here covering for you.”
When John is finally released back to work he finds out that he’s been moved from 1st shift to 3rd shift. When he asks his manager about it, he learns that they did an off-cycle shift bid while he was on leave. It was based on seniority, so he should have been granted his normal 1st shift schedule but because he didn’t complete the bid form on time, his name was placed last on the list. When John asked his manager about it, his manager told him it was too late because the schedules were already set.

 

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:

Katie is a teller for a bank. Her manager just did their annual reviews and awarded merit increases to the employees at her branch. After discussing the scores and raises with her coworkers she realized that even though she received the same performance rating as her male counterparts, they all received higher raises. Katie was so angry about it that she posted about it to Facebook, stating that her manager wasn’t treating the employees fairly. Another coworker commented on the post and agreed with her.
Her manager saw the post, confronted Katie about it, and then denied all her pre-approved vacation time for the year.

 

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:

  1. What they should and should not say to an employee
  2. 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 info@leavesolutions.com if you have questions on retaliation claims or other topics.



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