Employees Can Sue if They Experience Retaliation After FMLA or CFRA

The U.S. Department of Labor Wage and Hour Division prohibits employers from retaliating against employees who take or try to take leave under the Family and Medical Leave Act of 1993 (FMLA), a federal law that protects employees who take unpaid leave for family or medical reasons, such as the birth or adoption of a child or to care for an ill family member. In fact, the law prohibits discrimination against even potential employees who took FMLA time off in a previous position.

In addition, the law prohibits employers from taking action against employees who complain about an employer's administration of the law, file a claim or lawsuit related to FMLA denial, give information in relation to a claim or lawsuit, or testify in any proceeding related to FMLA rights.

A 2012 survey reported that many employers found that following the law and granting leave to eligible employees was easy to do and had little negative effect upon their operations. However, employers continue to discriminate or retaliate against employees who take or try to take FMLA leave. The law allows employees to file suit if they feel they have been discriminated against or suffered retaliation because they requested FMLA leave or complained about an employer's denial of leave. Individuals generally have two years after the alleged retaliation to file a private lawsuit. An employee could also file a complaint with the Secretary of Labor.

A recent Wall Street Journal article reported on an apparent increase in FMLA lawsuits across the United States. A human resources compliance website reported that there were three times more lawsuits filed in 2013 than in 2012, and 2014 is on track to exceed 2013.

FMLA Lawsuits

What are the issues in these lawsuits? Recent examples include a TSA employee in Pennsylvania who filed a claim charging that his employer, the Transportation Security Administration, fired him because of his absences to deal with a chronic illness, his request for accommodation under the Americans with Disabilities Act and his extensive use of FMLA leave. The man filed a federal lawsuit in the U.S. District Court for the Eastern District of Pennsylvania.

A lawsuit filed by a nurse in Minnesota charges that her FMLA rights were violated. The employer responded that the nurse had quit the day before she requested FMLA leave. The nurse says that she did not quit, but that she was told by HR personnel to go home for the rest of the day after a dispute over a job assignment. The U.S. 8 th Circuit Court of Appeals overturned a lower court ruling against the nurse, and the case moved forward.

An Illinois employee charged that he was forced to choose between keeping his job and caring for his sick parents and that he was ultimately fired because he chose his parents. A federal court jury found that the man's employer was guilty of an intentional violation of his FMLA rights and awarded him more than $10 million in punitive damages and $750,000 in compensatory damages because of the retaliation against him.

CFRA Lawsuits

These are FMLA cases from other states. California medical leave retaliation lawsuits are most likely to be brought under the California family leave law, the California Family Rights Act (CFRA), which has similar provisions to the federal law. Employees in states with laws like California's who need to take leave for the birth of a child or a serious medical condition are covered by these state-specific statutes. Like the federal FMLA, the CFRA prohibits retaliation against employees who apply for, take or complain about CFRA leave matters.

Like employees in other states who file lawsuits against their employers for FMLA retaliation, California employees governed by the CFRA are also eligible to take legal action against their employers. For example, a California nurse charged in 2013 that she was harassed and received demands to return to work during her approved leave, taken to care for her mother who had a hip replacement. She says that she was wrongfully terminated when she did return to work, charging that she was suspended and ultimately fired in retaliation for taking CFRA leave.

Challenges When Filing a Lawsuit Over CFRA or FMLA Violations

There are many challenges when filing a CFRA or FMLA claim. There are questions of eligibility: Whether or not an employee is covered under these laws depends on the number of employees in the organization. Many employers are careful and try to abide by these laws. There are even websites counseling employers on how to avoid the appearance or the reality of retaliation. As the lawsuits described here show, however, employers continue to retaliate against employees who seek or take family leave.

Because of the challenges in filing a successful FMLA retaliation claim, it is important to have knowledgeable assistance from an attorney who focuses on employment law and knows the details of the laws that govern the right to take family or medical leave.