CAN MY EMPLOYER FIRE ME FOR USING FMLA LEAVE?
Aug 04, 2016 
By Peter Friedmann 
It is unlawful for an employer to interfere with, restrain, or deny an employee’s rights under the Family Medical Leave Act (FMLA). It is also unlawful for an employer to retaliate against, discharge, or discriminate against an employee for enforcing his or her rights under the FMLA. There are many different ways that an employer can interfere with an employee’s FMLA rights, or retaliate against an employee for exercising those rights. Because each situation is unique, a free consultation with one of our Ohio employment attorneys will be the best way for an employee to determine whether his or her rights were violated.
The FMLA provides protection for employees in the event an employer retaliates or discriminates against the employees for exercising their rights under the FMLA. Specifically, “an employer is prohibited from discriminating against employees… who have used FMLA leave….” Nor can the employer “use the taking of FMLA leave as a negative factor in employment actions.” 29 C.F.R. §825.220(c). This includes retaliatory termination for taking FMLA leave. If the employer is found to have retaliated against the employee for using FMLA leave, the employer will be liable for compensating the employee for any lost wages, as well as liquidated damages and attorneys’ fees.
Once an employee returns from FMLA leave, the employer is required to return the employee to the same position, or an equivalent position. An equivalent position means a position that is virtually identical to the original job in terms of pay, benefits, and other employment terms and conditions (including shift and location). If the employee is not returned to a same or similar position, this could be considered both interference with FMLA rights, and retaliation for taking FMLA leave. A single act by the employer can be considered both interference and retaliation under the FMLA.
It is worth noting that most employers are aware of an employee’s rights under the FMLA. Therefore, if an employer wants to terminate an employee for exercising his/her rights under the FMLA, the employer will usually try to find an alternative reason to use for the termination. But just because the employer establishes a “cover-up” reason for the termination, does not mean that the employer is free from liability. The employee only has to prove that his or her use of FMLA leave was a motivating factor in the employer’s decision to terminate or discipline. This proof is often established through witness testimony, email, text messages, audio recordings, or even simply the disparate treatment by itself.
For example, in one of our recent cases, our client was terminated while he was on approved FMLA leave. Our client used FMLA leave to admit himself into rehab for alcoholism. Immediately after he left for rehab, several emails were exchanged among upper management, discussing his leave, and the fact that he was attending rehab. In one email, an executive of the company stated, “we have too many signs to ignore, and not proactively address.” That email was immediately forwarded to the chief investigator of the company.
The very next day, the company launched an investigation against our client, regarding alleged misappropriation of company product. Within days of taking FMLA leave, the company had decided to terminate our client for misappropriation of company product. The company had decided to terminate our client, without interviewing him, or giving him the opportunity to rebut any of the allegations. After our client was terminated, his manager filled out an exit interview worksheet. One of the questions on the worksheet stated: “Would you rehire this person? If not, please explain why.” To this question, our client’s manager wrote: “No. Personal life in ruins. Needs outside help….” The employer never returned our client to his position after returning from FMLA leave.
At trial, we were able to prove (and the jury agreed) that the company’s decision to terminate was motivated by our client’s use of FMLA leave. As a result, we recovered compensatory and liquidated damages for our client. If you believe your employer has interfered with your FMLA rights, or has retaliated against you for taking FMLA, contact our office immediately.
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