Examples of FMLA Discrimination


The Family and Medical Leave Act (FMLA) was designed to provide up to 12 weeks of unpaid, protected time off for qualifying employees who need to care for their own personal health issues or those of a parent, spouse or child.

So long as the employer is covered by FMLA guidelines, and if an employee meets the criteria to qualify for FMLA leave, then employees are entitled to take leave without fear of losing their jobs.

According to 2015 data, roughly 10% of the US workforce was taking FMLA leave. While taking up to 12 weeks of unpaid time off isn’t always convenient for the employer, the law is designed to provide leave for emergency health crises as well as planned time off such as recovering from surgery or having a baby.

Not surprisingly, with so many workers using FMLA leave, some employers try to stop employers from taking leave by threatening their jobs and taking away benefits. In some cases, employers don’t fully understand FMLA guidelines and they misinterpreted the rules. In other cases, violations are intentional. Either way, employees who have been the subject for FMLA violations could be entitled to compensation.

Examples of FMLA Discrimination

FMLA discrimination can happen as a result of asking to take FMLA leave, while you are taking leave and when you return from leave. Here are some common examples of FMLA discrimination:

  • Being Fired: If you request FMLA leave or you take FMLA leave, you cannot be fired for making the request or taking advantage of the leave. Your employer cannot use your job as leverage to dissuade you from taking leave for any reason. So long as you are a qualifying employee, you are entitled to take leave.
  • Changing Jobs: If you return to work after FMLA leave, you must return to the same position you held prior to the leave. If the company undergoes restructuring, then you must be placed in a similar position with similar hours and pay.
  • Disciplined For Taking Leave: Your employer cannot deny your ability to take FMLA leave, which means you cannot be placed on a different shift upon returning or being demoted as a result of being gone. Your employer is not permitted to penalize you in any way for taking FMLA leave.
  • Change in Pay or Benefits: Your employer cannot cut your hours or pay, nor can your employer cut your benefits, as a result of taking FMLA leave. You must return to the same job you had before you left.

If you have experienced these or any other forms of FMLA violations, then you should contact an employment law attorney to learn more about your options and possible compensation.

What To Do Next

As soon as you suspect that you have been the victim of FMLA discrimination, you should start working to gather evidence to build your case.

Here are the most important pieces of evidence you should gather:

  • Names and contact information for all of the people involved in the incident(s)
  • Timeline of the incident: Be sure to note how your request for FMLA leave or the timing of your FMLA leave fit into the timeline of the discrimination incident
  • Detailed explanation of all incidents of discrimination

When you are gathering evidence, make sure you include as many details as possible. If you are qualified for a promotion but your supervisor passes over you, try to obtain a copy of the job description to show that you are qualified for the job but were not considered.

There is no such thing as too much information in FMLA discrimination cases. You need to be particularly vigilant in gathering evidence when discrimination takes place while you are taking leave. Ask your colleagues if they are willing to speak on your behalf about positions that were available when you were on leave.

Your best bet is to consult with an experienced employment lawyer to determine what your options are and how you should proceed with a claim.

How An Employment Lawyer Can Help

If you believe that your rights under FMLA guidelines have been violated, then you have two options. You can either file a complaint with the Department of Labor’s Wage and Hour Division (WHD), or you can file a private lawsuit against your employer.

No matter which option you choose, having an expert to help you navigate the course is essential. An experienced employment lawyer can help determine which option is the best fit for your situation while also helping to gather evidence, locate witnesses and appear in court.

While hiring an employment lawyer does not guarantee that you will win your case, having expert legal advice will definitely increase the odds of a favorable outcome.

Most employment attorneys will meet with you for a free or reduced fee consultation to discuss your case and map out your options. At that time you will also be able to discuss fees. Many employment law attorneys work on a contingency fee basis, meaning you do not pay upfront and you only pay if you win your case. Moreover, if you win your case the legal fees are included in your settlement, so there is very little risk to hiring an employment lawyer to advocate on your behalf.

To learn more about how an employment attorney can help with your case, fill out a free case evaluation form.

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