Know your legal rights – and your legal recourse
The federal Family and Medical Leave Act (FMLA) gives most West Virginia employees the right to take unpaid leave under certain circumstances. The law also protects employees from retaliation for exercising their right to FMLA leave.
Unfortunately, not all employers follow the law, and some retaliate against employees. While some instances of retaliation are overt, many are subtle. Here are the key warning signs of FMLA retaliation to watch out for.
Are you covered by the FMLA?
As we’ve previously covered, illegal workplace retaliation is an adverse employment action in response to a legally protected activity – and requesting or taking FMLA leave is one such protected activity. You are covered under the FMLA if you meet the following criteria:
- You have worked for your employer for at least 12 months,
- You have worked at least 1,250 hours for your employer in the past 12 months (that’s about 24 hours a week), and
- Your employer has at least 50 employees within a 75-mile radius of your work location.
If you qualify for FMLA, then you are eligible to take up to 12 weeks of unpaid leave to deal with your own serious health condition; care for a spouse, child, or parent with a serious health condition; or care for a new child whether born, adopted, or fostered. This leave is job-protected, meaning that your employer must return you to your position or an equivalent position when you return.
Warning signs of FMLA retaliation
Again, some violations of the FMLA are blatant. For example, if your employer fires you or fails to return you to your job, that is clear retaliation. But other instances are more subtle. For example:
Your hours are reduced, but not your workload. You don’t have to take your FMLA leave all at once; you can take intermittent leave and work a reduced schedule. It’s your employer’s responsibility to adjust their expectations appropriately to make such a schedule work. For example, if you previously worked five days a week and are now taking one day a week off due to FMLA leave, but your employer still expects you to do five days’ worth of work and disciplines you for not keeping up, that is retaliation.
You are put on the “mommy track.” Despite the gendered term, this can happen to anyone, but it’s a more common problem for mothers. Your employer may assume that taking family leave means you are more interested in family responsibilities than career advancement – and thereby start taking you off prestigious accounts, removing professional development opportunities, and so on. This isn’t necessarily a bad thing if it’s done by the employee’s choice, but if your employer makes that choice for you because you took leave, that is retaliation.
Your FMLA leave is used against you in performance reviews. Again, this is often subtle – your employer may raise generic concerns about “attendance” or “reliability” without specifically bringing up your FMLA leave. But it’s still illegal. Your employer can’t hold exercising your rights against you. If they have an attendance policy, for instance, they can’t consider your FMLA leave cumulatively with your other absences.
Your employer changes your responsibilities in ways that interfere with your medical condition. For example, after taking medical leave, you may now be required to stay on your feet all day, come to the office in person more than you did previously, lift heavy objects, or otherwise be put under unnecessary physical strain. If an employer does this to retaliate against an employee with physical restrictions due to a medical condition, that is retaliation.
What to do if you suspect FMLA retaliation
The first thing you need to do is document everything. Save copies of all relevant employment documents, such as performance reviews before and after your FMLA leave that may illustrate a pattern of retaliation. If someone in authority at your workplace says something retaliatory, write it down. Take note of any witnesses as well. You have legal recourse, but you need to prove it, and that requires documentation.
You also need to contact an experienced FMLA retaliation attorney as soon as possible. We know the law, we know your rights, and we are ready to protect your interests in negotiations and, if necessary, litigation. Schedule your free case evaluation with Klie Law Offices today.