FMLA Retaliation and Discrimination

What is the FMLA. The Family Medical Leave Act (“FMLA”) entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. An employee can generally take up to twelve weeks of leave.

Who is Covered. FMLA applies to all public agencies, including state, local and federal employers, local education agencies (schools), and private-sector employers who employed 50 or more employees in 20 or more workweeks in the current or preceding calendar year, including joint employers and successors of covered employers.

What is Prohibited. Section 105 of the FMLA and Section 825.220 of the FMLA regulations prohibit the following actions:

An employer is prohibited from interfering with, restraining, or denying the exercise of, or the attempt to exercise, any FMLA right ;

An employer is prohibited from discriminating or retaliating against an employee or prospective employee for having exercised or attempted to exercise any FMLA right ;

An employer is prohibited from discharging or in any other way discriminating against any person, whether or not an employee, for opposing or complaining about any unlawful practice under the FMLA;

All persons, whether or not employers, are prohibited from discharging or in any other way discriminating against any person, whether or not an employee, because that person has:

• Filed any charge, has instituted, or caused to be instituted, any proceeding under or related to the FMLA;
• Given, or is about to give, any information in connection with an inquiry or proceeding relating to any right under the FMLA; or
• Testified, or is about to testify, in any inquiry or proceeding relating to a right under the FMLA.

• Examples of prohibited conduct include:
• Refusing to authorize FMLA leave for an eligible employee;
• Discouraging an employee from using FMLA leave;
• Manipulating an employee’s work hours to avoid responsibilities under the FMLA;
• Using an employee’s request for or use of FMLA leave as a negative factor in employment actions, such as hiring, promotions, or disciplinary actions, or,
• Counting FMLA leave under “no fault” attendance policies;
• Any violations of the FMLA or the Department’s regulations constitute interfering with, restraining, or denying the exercise of rights provided by the FMLA.

Damages. If you win your case for FMLA retaliation or discrimination you may be entitled to:

• The amount of wages, salary, employment benefits, or other compensation denied or lost to such employee by reason of the violation; or
• Any actual monetary losses sustained by the employee as a direct result of the violation, such as the cost of providing care, up to a sum equal to twelve (12) weeks of wages or salary for the employee, in a case in which wages, salary, employment benefits, or other compensation have not been denied or lost to the employee;
• Attorney fees and costs, including a reasonable attorney's fee, reasonable expert witness fees, and other costs of the action to be paid by the defendant. 29 U.S.C. § 2617(a)(3).
• Equitable relief such as employment, reinstatement or promotion. 29 U.S.C. § 2617(a)(1)

Evidentiary Considerations. As in most employment law claims, these cases are “she said, he said” type cases and therefore documenting everything that occurs is very important. You are encouraged to keep a diary or journal of what is going on at work as well as keeping copies of all correspondence to and from your employer (written complaints to the HR department, emails to and from your supervisor and/or coworkers, and any other relevant documents). If you are in San Antonio, or within the state of Texas, you can also make audio recordings of conversations without the other parties’ consent or knowledge as long as you are in the same room as the recording device. See this resource for the legalities of audio recordings in Texas.

Statute of Limitations. Generally, suit must be filed within two years after the last action that the employee believes was in violation of the FMLA, or three years if the violation was willful. (It is up to the court to rule whether the alleged violation occurred and, if so, whether it was willful.) A state employee's right to private action may be limited.

If you or a loved one has been denied FMLA leave or subject to retaliation or discrimination for requesting FMLA leave, please contact the attorneys of Carabin Shaw in San Antonio today. We offer free initial consultations and work on a contingent fee basis, which means that there is never a fee unless we successfully resolve your case. Our experienced San Antonio employment lawyers will know how to deal with the employment discrimination so you don’t have to.

For immediate assistance and to set up a free consultation with one of our experienced lawyers, call us toll-free at 800-862-1260.

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