Under the federal Family and Medical Leave Act or FMLA, eligible employees who work for covered employers have the right to take up to 12 weeks of unpaid, job-protected leave for several reasons. The primary reasons why people take FMLA leave are to deal with their own serious medical issues or to care for their family members’ serious medical conditions. Covered employers are required to provide FMLA leave to their eligible employees. At the end of the leave period, your employer must return you to the same position or one that is substantially similar with the same duties, salary, benefits, and job location. However, many employers do not perfectly comply with the FMLA, and some employees are retaliated against by their employers for taking leave under the FMLA. Here are some things to consider from the attorneys at Swartz Swidler when you are wondering whether your rights under the FMLA have been violated.
Are you an eligible employee under the FMLA?
The FMLA does not cover all employers, and some employees who work for covered employers are still not eligible to take leave under the FMLA. Employers that are covered by the FMLA include the following:
- Private employers that have 50 or more employees who have worked for 20 or more weeks during the current or previous year
- Local, state, and federal government agencies of any size
- Public and private K-12 schools of any size
Employees must also meet specific criteria when they work for covered employers. The eligibility requirements for employees to take FMLA leave include the following:
- Work for a covered employer
- Have worked at least 12 months for the covered employer prior to the date of the FMLA leave
- Have worked a minimum of 1,250 hours during the 12-month period
- Work at a location in which the employers has 50 or more employees working within 75 miles of each other
What are your rights under the FMLA?
If you are an eligible employee who works for a covered employer, you have the right to take up to 12 weeks of unpaid leave for a qualifying reason every 12 months. When you return from taking leave, your employer must give you back your job or one that is equivalent to it, and you must receive the same benefits and salary, have the same job duties, and work at the same location as you did before you took leave. If you return to find you have been demoted or have had your salary reduced, your employer may have engaged in illegal retaliation.
Some of the qualifying reasons for taking FMLA leave include the following:
- To recover after giving birth
- To care for a newborn infant
- To deal with a serious health condition that makes you unable to work
- To care for a family member who is experiencing a serious medical condition
- To handle issues that arise because of a family member’s active military duty
Options for taking FMLA leave
If you are an eligible employee with a qualifying reason to take FMLA leave, you can choose to take leave in a large chunk of time or divided it up by working fewer hours per day or fewer days per week. This type of leave is referred to as intermittent leave. Employers cannot make it harder for you to choose intermittent leave. For example, your employer cannot overload you with more work than you can complete during your reduced schedule or demote you because you are working fewer hours. Both of those types of reactions might be retaliatory.
Signs that you might be facing retaliation based on taking FMLA leave
The FMLA allows you to use your leave as needed instead of mandating you to take it all in one large block. Retaliation is fairly common when eligible employees take intermittent leave because they are both on leave and working part-time. It is more difficult to identify subtle changes in the workplace that can turn into retaliatory actions.
Some examples of retaliation when you take intermittent leave include the following:
- Your employer assigns you duties that would require you to work a full-time schedule while you are working part-time and fires you when you cannot complete the unreasonably heavy duties assigned to you.
- Your employer tells you that you cannot do your job part-time and demotes you to a non-equivalent position that pays less.
- Your employer tells you that working part-time means you should only be paid a part-time salary and decreases your pay.
Some employers retaliate against workers after they return from taking full-time leave. Under the FMLA, you must be restored to your former position or an equivalent job. However, the FMLA does not guarantee that your exact job will be open in the same department. Employers are granted some leeway for filling in work gaps when people are out on leave under the FMLA. However, you might still have grounds for a retaliation claim if any of the following occurred when you returned to work:
- You have been demoted.
- You are placed in a new position at a lower rate of pay.
- You lost seniority and are required to start at the beginning again.
- You are told that you are not eligible for a promotion for which you are qualified.
- Your employer keeps you off of important projects because of your leave.
- You are now required to do things that you were not required to do prior to taking leave.
What to do if you believe your employer has retaliated against you
If you believe your employer has retaliated against you for taking leave under the FMLA, you should talk to an employment attorney at Swartz Swidler. We can help you understand the legal merits of your case. Call us at (856) 685-7420 for a free and confidential consultation.
