Knowing Your Rights Against FMLA Retaliation
Stand up for Your Rights to Protected Leave
Under the Family and Medical Leave Act of 1993 and the California Family Rights Act, you are entitled to 12 weeks of protected leave within a 12-month period. As long as your reason qualifies, a reason that you do not always have to completely disclose under HIPAA, your job will be secured and you will be given un-paid leave to properly tend to your family or medical concern.
Not all employers are so understanding, however, and some employees come back from their leave to a wrongful termination or demotion. This violates the act and is often grounds for a complaint or lawsuit.
How do I prove it was because of my leave?
Most employees in California are at-will, meaning that their employers can fire them for nearly any cause, except for what could be discrimination. This includes sex, race, nationality, creed, sexual-orientation, and disability, among others. Needing to take time off work for a family or medical concern is considered a disability at this stage, and thus, is protected from discrimination.
Because an employer could never cite your leave as the reason behind a termination or demotion, they are often forced into citing some kind of performance issue, and this is the key in determining whether or not the employer’s action could be justified. If your performance was suffering before your leave, this action may stand up in a court of law. If you were performing at or above expectation, it would be clearer to see that your leave was key factor in their decision, which would be illegal.
Be Wary of Changed Positions
Often, employers look for alternatives to terminating an employee, knowing that it would be deemed FMLA retaliation. Their solutions often include a change in position or role, but with the same salary. If the new position is characterized by a loss of responsibilities in comparison to the previous role, it may be a subdued form of retaliation, regardless of the stayed salary. One way to determine this is to look at the starting salary for the new role and compare that to the starting salary of your previous role.