How to Prove FMLA Retaliation and Protect Your Job

Employers are strictly prohibited from retaliating against employees who request or take leave under the Family and Medical Leave Act (FMLA). Emails, employment records and various other forms of documentation can be used to prove FMLA retaliation in most cases. If you believe that your employer has violated your rights under the FMLA, you should consult with an experienced attorney promptly.

The Family and Medical Leave Act (FMLA) entitles covered employees to job-protected leave for qualifying medical and family purposes. When employees are entitled to FMLA leave, their employers are required to provide it, and they are prohibited from retaliating against employees who exercise their statutory rights. If an employer retaliates against an employee in violation of the FMLA—which happens far more often than it should—the employer can (and should) be held accountable.

If your employer has retaliated against you in violation of the FMLA, it will be up to you to prove it. Here’s what you need to know:

What Constitutes Unlawful Retaliation Under the FMLA?

Unlawful retaliation under the FMLA can take many different forms. Similar to other scenarios involving violations of employees’ statutory rights, any adverse employment action that is based on an employee’s decision to assert his or her rights under the FMLA can serve as the basis for a retaliation claim.

With this in mind, some examples of potential grounds to file an FMLA retaliation claim include:

Termination of employment
Denial of a pay raise or promotion
Reassignment to a less senior or less desirable position
Reassignment to a different work location
Revocation of the ability to work from home
Pay reduction
Reduction in hours
Disciplinary action

To constitute unlawful retaliation, an adverse employment action must be based on an employee’s decision to request or take leave under the FMLA. If the timing is purely coincidental, facing an adverse employment action after requesting or taking FMLA leave is not enough to establish a retaliation claim on its own. However, employers cannot “find” a valid justification for a retaliatory employment action that is truly based on the employee’s decision to exercise his or her FMLA rights. This is referred to as a “pretext,” and pretextual justifications do not protect employers that engage in retaliation.

How Do You Prove Retaliation in Violation of the FMLA?

Various forms of evidence can be used to prove unlawful retaliation under the FMLA. The type (or types) of evidence that are available in your case will depend on the specific circumstances involved. With this in mind, some examples of the types of evidence that can be used to prove FMLA retaliation include:

Emails, direct messages and other written communications
Voicemails or voice messages
Employment records
Testimony from coworkers

If you believe that your employer has violated your rights under the FMLA, you should keep any relevant (or potentially relevant) records you have in your possession. You should also take detailed notes. The more details you can record, the better. When you sit down with a Philadelphia FMLA attorney to discuss your case, your attorney will use the information you share to provide a preliminary assessment of your case.

How Do You File a Retaliation Claim Under the FMLA?

If you have grounds to pursue a retaliation case under the FMLA, you have two primary options for asserting your legal rights: (i) you can file a claim with the U.S. Department of Labor’s Wage and Hour Division (WHD); or, (ii) you can file a civil lawsuit against your employer in court.

Your attorney can help you decide which option makes the most sense based on the specific circumstances of your case. In some cases, it may also be possible to negotiate a favorable resolution with your employer without the need to take formal legal action.

FAQs: Protecting Your Legal Rights Under the FMLA

What are the remedies for unlawful retaliation under the FMLA?

The remedies for unlawful retaliation under the FMLA generally include lost income and benefits (with interest), reinstatement or placement in an appropriate position, and coverage for employees’ legal fees and costs. Liquidated damages are also available in some cases. If you have a claim, your attorney can help you decide which remedies to pursue.

What should I do if I was fired after requesting or taking FMLA leave?

If you were fired after requesting or taking FMLA leave and you have reason to believe that your employer retaliated against you, you should consult with an experienced attorney promptly. An attorney who has experience handling FMLA retaliation claims will be able to assess your legal rights and help you make informed decisions about your next steps.

How long do I have to file a claim for FMLA retaliation?

Employees generally have two years to file claims for non-willful FMLA violations and three years to file claims for willful violations. With that said, if you have grounds to file a claim, you will want to start the process as soon as possible.

How Our Attorneys Help Victims of FMLA Retaliation

At Murphy Law Group, we provide comprehensive and custom-tailored legal representation for employees who are victims of FMLA retaliation. If you have questions about your legal rights, our attorneys can:

Assess your situation to determine if you have an FMLA retaliation claim
Help you decide which remedies to pursue
Attempt to work out an amicable resolution with your employer
File a claim with the WHD or file a civil lawsuit in court
Advise you and help you make informed decisions throughout the process

Schedule a Free and Confidential Consultation with a Philadelphia FMLA Attorney Today

Do you have questions about filing an FMLA retaliation claim against your employer in Pennsylvania? If so, we invite you to contact us for a free, no-obligation consultation. To speak with an experienced Philadelphia FMLA attorney at Murphy Law Group in confidence as soon as possible, call us at 267-273-1054 or tell us how we reach you online today.