FMLA Articles

Retaliation or interference or both?

Employers can benefit from knowing the types of FMLA claims You know it might be a bad day when you learn that an employee is suing your company, claiming a violation of his or her rights under the Family and Medical Leave Act (FMLA). For anyone who has ever had the pleasure of seeing first-hand how the courts handle FMLA claims, you probably already know about what types are available. For those of you who are not indoctrinated, however, knowing the types of claims can provide insight into employees’ rights as well as your obligations under the law, and perhaps your potential defense. Remember, HR professionals, managers, and supervisors could all be held individually liable under the FMLA, so you have a stake in the game. The FMLA recognizes two types of claims: interference claims, in which employers over-burden employees or outright deny rights to which their employees are entitled; and retaliation claims, in which employers take adverse employment actions against employees for exercising their FMLA rights. To establish an interference claim, an employee (aka, plaintiff) would need to show the following: He or she was an eligible employee, The employer was subject to the FMLA, He or she was entitled to leave under the FMLA, He or she gave the employer notice of the intention to take FMLA leave, and The employer denied FMLA benefits to which he or she was entitled. To establish a retaliation claim, an employee (plaintiff) would need to show the following: He or she engaged in an activity protected by the FMLA, The employer took an adverse employment action against him or her, and There was a causal connection between the protected activity and the adverse employment action. Based on what a plaintiff needs to show, you can begin to consider a possible defense. Perhaps the employee did not meet the eligibility criteria. Perhaps you have documented proof that any adverse action was not connected to the taking of FMLA leave. For example, if you saw social media posts of the employee enjoying a boisterous concert when she indicated that she needed to be home because of a migraine, you might have a good argument that whatever action you take was not because the employee exercised her FMLA rights. Employees have no such rights if they obtain leave fraudulently. For another example, if the employee took leave to get her car fixed, the activity would not be protected by the FMLA because it’s not a qualifying reason. Even if you never need to prepare a defense, knowing how claims can play out can provide you with insight, since a good defense is a strong offense.


The J. J. Keller LEAVE MANAGER service is your business resource for tracking employee leave and ensuring compliance with the latest Federal and State FMLA and leave requirements.