Am I being retaliated against by my employer for taking FMLA leave to care for a sick parent?

Not sure if I am being retaliated against by my employer. I took 6 weeks approved FMLA leave to care for my mother after a traumatic brain injury and emergency surgery that left her in a coma for 2 weeks and then extensive inpatient rehabilitation for another 5 where she had to relearn how to do everything; she was basically a vegetable. When I returned to work, I got the cold shoulder from my boss, fine, but I have been here everyday, extremely pleasant and as always, go above and beyond with my work. Three weeks back and viia email, I requested some vacation time that I have accrued and have available to me. He responded via email that we would discuss at a later time. The next day we spoke and he told me was denying my vacation because I was just out for 6 weeks on leave and 'optically' it would not look good to him. Furthermore, he told me that because I was out, he had to work on his vacation and that there were a lot of business issues, although this is the first I was hearing about it. Meanwhile, there is another woman on the team, similar position, who was out for 10 months (fmla and then personal leave) to care for a sick child. When she returned in January, she was approved for two vacations in two months, is also allowed to work from home and I found out they are not counting any of her time off towards her PTO. Do I have a case of retaliation because I am being treated differently?? Thanks!

2 answers  |  asked Jun 2, 2015 1:26 PM [EST]  |  applies to New Jersey

Answers (2)

Natalia Shishkin
Although I agree with the general analysis by Neil Klingshirn, New Jersey courts interpret "adverse employment action" very liberally when taken in retaliation for taking FMLA leave. For example, in one of my cases a district judge agreed that a change in schedule was actionable retaliation where the employer knew that the schedule was extremely inconvenient for my client. If the employer continues to treat you differently because of your FMLA leave and you start losing money as a result, you may want to speak to an experienced employment attorney.

posted by Natalia Shishkin  |  Jun 16, 2015 1:10 PM [EST]
Neil Klingshirn
The test for whether you are being retaliated against because you took FMLA is whether you exercised rights under the FMLA, suffered a tangible, adverse job action, and the adverse job action is causally connected to exercising your rights under the FMLA.

According to your question, you exercised rights under the FMLA. So far, so good.

You may not have suffered a tangible, adverse job action, though, because denial of vacation may not be enough to be tangible. Usually, although not always, an employee has to suffer a loss of pay, like from a demotion, suspension or termination, before there is a tangible, adverse job action.

If denial of vacation amounts to a tangible, adverse job action, then your employer's comments about optics and working on his/her own vacation could support a causal connection. However, the fact that your employer did not retaliate against another employee who exercised FMLA rights undercuts a causal connection to the exercise of FMLA rights.

Discrimination claims are similar to, but different from, retaliation claims. In discrimination cases, you have to prove that you were treated differently, in a tangible way, from someone else, because of your race, gender, age or other protected characteristic. In your situation, if your employer treated you and the other employee differently from people who did not take FMLA, then taking FMLA might be the reason for the differing treatment (i.e., discrimination). But since the employer treated two protected people differently, the reason is probably not because you both took FMLA.

I hope this helps.

posted by Neil Klingshirn  |  Jun 4, 2015 10:04 AM [EST]

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