FMLA - coercion

I was out on FMLA from my job of 2+ years at an NGO while my terminally ill brother was in the hospital and when I returned to work after 9 weeks they had hired a new director in my sub-dept. We do not get along personalitywise but I have met every deadline she has given me. My job title remained the same but all responsibilities were completely below my level prior to being out on FMLA. I had shown superb work prior to leaving. I, in fact, had actually been promoted retroactively 3 months prior to my leave.

A month after my return, when I raised this issue along with a request to confirm tasks that are appointed to me through email for "better communications" (for documentation), I was pulled into a meeting and told I was not to challenge authority and I was given 3 options.

Option A was to sign a "it's all my fault clause" and I would also have to sign off on what they claim are my responsibilities, which they were not planning on drafting until I signed on the dotted line. Only after I insisted that it is impossible to make a decision and to sign a contract without knowing what I was signing did they begin to write one. Their lawyer is drafting it. I would be on probation for 3 months after 2 years of dedicated employment - after those 3 months if my work was not up to par to whatever they desire (though there has never been complaints about my work in the past), I would be terminated.

Option B was to resign because I could "not work positively and constructively with my new director" and I would receive a one months severance package and health benefits for a period of one month. I would also be eligible for unemployment. (I am not sure how)

Option C was to take 2 weeks time to "reflect" and make a decision between the 2.

I also do not think management of my dept is pleased that I need to take off to take my brother to his appointments, though they have not said so. (most likely because that is blatantly illegal).

I had also been told not to discuss my brother at work. Typically the organization I work for is very laid back and very humanistic. The organization as a whole is amazing and is highly respected but due to poor leadership within my department, there has been many unaddressed conflicts.

This all comes as a surprise to most people in the office though I believe they had meant to sweep me under the rug and claim I resigned due to personal reasons (ie my brother).

Thanks much.

1 answer  |  asked Nov 19, 2004 02:02 AM [EST]  |  applies to New York

Answers (1)

David M. Lira
Retaliation under FMLA

Your fact pattern suggests primarily a retaliation situation. Retaliation takes place when an employer reacts adversely to an employee's attempt to assert a protected right, or assists another employee in asserting a protected right. The right must be defined by legislation, like the Family & Medical Leave Act (FMLA). The degree to which you are protected from retaliation is also defined by statute.

FMLA itself has no anti-retaliation provision. FMLA relies on the anti-retaliation provision in the Fair Labor Standards Act (FLSA). The anti-retaliation provision in FLSA is narrower than other laws, such as Title VII, which addresses certain kinds of discrimination. Under Title VII's anti-retaliation provision, just about any complaint would be protected. Under FLSA, only formal complaints are protected. That is, the only retaliation prohibited under FLSA (and FMLA by extension) is the filing and prosecution of an action or proceeding in court or in the U.S. Department of Labor.

If you are still in need of FMLA leave, then the aim of the employer's action might be to discourage further use of FMLA leave. That might be a violation of FMLA directly, and, technically, not even a retaliation claim.

As an additional asside, if you have a retaliation claim, generally, retaliation claims are easier to prove then the substantive claims giving rise to the retaliation claim.

posted by David M. Lira  |  Nov 19, 2004 09:22 AM [EST]

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