Date: November 4th, 2024

An employer cannot retaliate against an employee for requesting or taking FMLA leave. However, just because you see her use FMLA leave does not mean you are immune from being terminated. Because of this, employers will often attempt to cover up their retaliatory motives by creating a pretext to terminated employee that has sought or used FMLA leave. 

For example, many times and employer will come up with a false reason to terminated employee prior to going out on a planned FMLA leave for surgery, childbirth, or another expected reason. The employer cannot admit that it is terminating the employee due to seeking leave, so it will come up with a cover up to the retaliation, which is known as a pretext. 

Another common example of FMLA retaliation occurs while an employee is out on leave. We often see employers start nitpicking and employees work while they are out on leave and critiquing it at a level that other employees are not critiqued. We also often see employers attempt to discipline or terminate an employee due to an incident that occurred prior to them availing themselves to FMLA leave, in an effort to create a pretext to terminate that employee.

If you believe an employer is attempting to create a pretext to terminate your employment seeking or using FMLA leave, it is important that you make a written complaint to your employer’s human resources department or upper management if human resources is not available. You want to be sure to put your employer on notice that you were sensing FMLA retaliation. The hope of making your employers human resources department or upper management of aware of the retaliation is to avoid a retaliatory termination from occurring. However, if the employer still follows through with termination, having a complaint in writing will be vital to your ability to succeed with a legal claim.

Author: Gary Martoccio, Martoccio Law Group (licensed in AZ, GA, FL, IL, MA, NC, PA, TN, TX)

#FMLA #retaliation #medicalleave #wrongful termination