Retaliation for Taking Protected Leave
Taking leave obviously inconveniences an employer, creating a situation in which an employer may disfavor an employee who took protected leave. Fortunately, the employment laws have forseen this issue and make it illegal for employers to retaliate against employees who properly take leave. Protected leave most commonly occurs under the FMLA, but also applies to the ADA and USERRA.
How do you make a case for retaliation?
To have a retaliation claim, the employee needs to meet the following:
- The employee engaged in protected activity;
- The employer took an "adverse employment action" against the employee; and
- The protected activity caused the adverse employment action.
Generally, only the last point, number 3, will be in contention. Though the law can be complicated as to what constitute or does not constitute "protected activity." Below, I have given some examples of protected activity. Typically, an adverse action is also apparent, which I also discuss below.
What constitutes protected activity?
An employee must engage in protected action, such as taking leave which is protected by law to be protected from retaliation. Some laws that entitle employees to protected leave include the:
- Family Medical Leave Act - 12 weeks of unpaid leave for serious health conditions;
- Americans with Disabilities Act - leave for an illness which is considered a "reasonable accomodation;" and
- Uniformed Services Employment and Reemployment Rights Act - leave for service members.
An employee need not actually take leave in order for the law to protect them. For example, an employee who requests FMLA paperwork from an employer and is subsequently retaliated against may have a claim for retaliation related to FMLA leave.
What retaliation is prohibited?
An employer should treat an employee who takes / took leave the same as if the employee had not. This fulfills the prong of "adverse action" when stating a case of retaliation. Some notable prohibitions on retaliation include:
- Reduction in pay;
- Reduction in horus; and
- Unfavorable transfer (location or shift);
Have an Employment Lawyer Review Your Retaliation Case
Employment laws are complex and contain many deadlines; it remains important to dilligently pursue your case. If you think your employer retaliated against you for attempting to or for taking protected leave, contact me to schedule a consulation with your Texas employment lawyer to review your claims.