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

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]

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]