Retaliation for Taking Leave
The Federal Family Medical Leave Act (FMLA) and California’s Family Rights Act (CFRA) require employers of at least 50 employees, to allow up to 12 weeks of unpaid leave for the birth or adoption of a child; to care for a spouse, registered domestic partner, child, or parent with a serious health condition; or because of the employee’s own serious health condition.
Although many employers may not be happy about having you out of work, it is nevertheless the law, and they must follow it, holding your job open for you until you return. The employer may not discriminate against you in any way or harass you because you have taken this leave.
If you’ve suffered retaliation from your employer because you’ve taken a family medical leave that you’re entitled to, you may have the grounds for a lawsuit to recover damages, including lost wages and benefits, lost future earning ability, and possibly punitive damages to punish the employer and deter future attempts at illegal retaliation.
When you have a medical need that requires you to take leave, you need to follow your employer’s notification procedure. Your employer has the right to request medical certification from your doctor stating the reasons the leave is necessary, and you need to get that taken care of before you take the time off, even if you are taking the FMLA time off intermittently instead of continuously.
Assuming you’ve followed the correct procedure in notifying your employer of your need to take a leave of absence and have provided the appropriate documentation, talk to a lawyer about making a claim against the employer if you suffer any kind of retaliation.
Examples of Retaliation for Family Leave
- Loss of earned promotion
- Loss of benefits
- Less favorable work schedule
- Drop in pay
- Letter of reprimand
Proving Retaliation for Taking Family Medical Leave
When you make an FMLA retaliation claim, law requires that you must demonstrate that:
- While on leave, you were engaged in an activity protected by the FMLA
- You suffered a materially adverse employment action
- Your protected FMLA activity was the cause of the adverse employment action
Once you’ve shown these things, your employer is likely to offer some other kind of reason for the action besides retaliation. You and your lawyer will need to demonstrate that the justification given is disingenuous and is being offered as a pretext.
San Diego Employment Super Lawyers
These cases are not easy to prove, and you will do best if you have an experienced employment attorney advocating for you. The employment discrimination lawyers at Harrison & Bodell not only have years of experience, we’ve been selected for inclusion in Super Lawyers Magazine, placing us among the top five percent of attorneys practicing in San Diego.
We devote a substantial part of our law practice to assisting victims of workplace discrimination, harassment, and unfair employment practices. We view the right to work for a living as an essential human right and are passionate about fighting for anyone who has been denied that right or has been treated poorly at work.
Call today for an appointment to come in and tell us about your situation. We’ll give honest, straightforward answers to all your questions and advise you on the best course of action to take.
You don’t need to worry about paying anything until after your case settles and you receive a check. In many cases, the court orders the employer to pay legal expenses.