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What Constitutes an “Adverse Employment Action” in the Context of FMLA Retaliation Claims?

Founding Member of Moshes Law, P.C.
During his years of practice, Yuriy has concentrated in litigation and real estate transactions as his areas of expertise.
what is an adverse employment action

Forrest Gump famously compared life to a box of chocolates, and he is right that you never know what may happen. Life has a bad habit of interrupting your perfect plans at the wrong times.

For this reason, the federal government allows all qualified employees to take leave for a qualifying reason to be discussed further below. If you have experienced unlawful retaliation, you should contact an attorney to discuss your possible legal claim for unpaid leave under the Family and Medical Leave Act (“FMLA”). The FMLA also makes it illegal to retaliate against an employee for taking leave pursuant to the FMLA. If you have experienced unlawful retaliation, you should get Employment Lawyers NYC free consultation to discuss your possible legal claim.

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Under federal law, an employer commits unlawful FMLA retaliation when it takes an adverse employment action against an employee in retaliation for taking FMLA leave. This article seeks to explain an adverse action in the FMLA retaliation context and explain how you can bring an FMLA retaliation claim if you have experienced retaliation.

What Does Adverse Employment Action Mean?

The employment laws of the United States generally protect employees from adverse employment actions taken in retaliation for reporting violations of the law. The same principle applies in the context of FMLA retaliation. The phrase “adverse employment action” seems vague, but it does have a specific definition.

For purposes of an FMLA retaliation claim, the legal definition of an adverse employment action is “any action by the employer that is likely to dissuade a reasonable worker in the plaintiff’s position from exercising his legal rights.” Millea v. Metro-North R.R. Co., 658 F.3d 154, 164 (2d Cir. 2011).

An adverse employment action is “more disruptive than a mere inconvenience or an alteration of job responsibilities.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 85 (2d Cir. 2015) (citation omitted).

Examples of adverse employment actions include “termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices unique to a particular situation.” Id. (citation omitted).

“Only in limited circumstances does a single, acute incident of abuse qualify as an adverse employment action,” such as when the incident “constitute[s] an intolerable alteration of the plaintiff’s working conditions so as to substantially interfere with or impair his ability to do his job.” Mathirampuzha v. Potter, 548 F.3d 70, 78-79 (2d Cir. 2008) (citation omitted).

This adverse employment action definition is based on the objective standard of what would be reasonable treatment of employees under the circumstances.

In Burlington Northern and Santa Fe Railway Co. v. White, 548 U.S. 53, 68 (2006), the Supreme Court of the United States settled the definition of adverse employment action. In that case, Ms. White, the Plaintiff, was a trained forklift operator, but was the only woman employed by Burlington Northern.

Many male employees shared the mistaken view that Ms. White had no business being a forklift operator because she was a woman. As a result, Ms. White was regularly teased and harassed on the job. When Ms. White reported this gender-based harassment to her supervisors, she was moved from duties as a forklift operator to less desirable duties as a track laborer, which was a much more arduous job. She was also suspended for 37 days without pay, but was eventually reinstated and given full back pay.

The United States Supreme Court held that this type of job reassignment is an adverse employment action. This definition of adverse employment action in this context has also been applied to FMLA retaliation claims.

Actions Which Are Considered “Adverse Employment Action”

Given this adverse employment action definition, actions such as firing and demoting are adverse employment actions. In addition, other actions that are not job-determinative employment actions can also be considered adverse employment actions.

For example, lateral transfers, unfavorable references, and the imposition of more burdensome work schedules, may also be considered adverse employment actions. This is because these actions are severe enough that they may deter an employee from exercising his or her rights under the FMLA.

It is impossible to compile a complete list of adverse employment actions, because there are any number of ways that an employer can try to punish its employees. Over the years, many lawsuits have helped to define the boundaries of the definition of “adverse employment action.”

As attorneys, we see many forms of adverse employment actions, but the most common illegal actions are these:

  • Placement of an employee on administrative leave

One famous example of this is the case of Dahlia v. Rodriguez. In that case, Mr. Angelo Dahlia, a police officer working in Burbank California, was placed on administrative leave after reporting fellow officers for physically abusing criminal suspects. The court held that this administrative leave was an adverse employment action;

  • Cuts in monthly base salary

In the horrific example of Little v. Windermere Relocation, Inc., Ms. Little’s employer cut her pay by more than 30% in response to her allegation that she was raped by a prospective client. The court held that this pay cut constituted an adverse employment action;

  • Failure to receive promotions

One famous example is the case of Passantino v. Johnson & Johnson Consumer Products. In that case, Ms. Passantino, who had alleged sex discrimination in the workplace, was thereafter shuffled around from department to department, received decreased job responsibilities, had her accounts transferred out of her portfolio, and downgraded her promotability status. The court held that these actions constituted an adverse employment action;

  • Negative job references

In the case of Hashimoto v. Dalton, Ms. Hashimoto had been fired by her employer, and so she filed a grievance with the EEOC. In response to that grievance, Ms. Hashimoto’s former employer gave negative job references that were false. The court held that the dissemination of negative employment references can constitute an adverse employment action;

  • Transfer of job duties and “undeserved” performance ratings

In the case of Yartzoff v. Thomas, the court found that transfers of job duties and undeserved performance ratings, if proven, would constitute adverse employment actions;

  • Failure to hire

One such famous case was Ruggles v. California Polytechnic State University. In that case, a professor who had complained about workplace discrimination was disqualified from hiring for a prestigious tenured teaching position. The court found that the closing of the job opening to her and the loss of opportunity even to compete for the position were adverse employment actions;

  • Extended disciplinary suspension

In E.E.O.C. v. Crown Zellerbach Corporation, the EEOC found that the defendant employer took an adverse employment action by suspending an employee without pay for four months.

Other examples:

  • Denial of a transfer;
  • Layoff/Termination;
  • Deprivation of ability to take promotional exam;
  • Loss of pay and opportunities for investigative or other job experience;
  • Low ratings on job performance reviews;
  • Decreased job responsibilities.

Signs of FMLA Retaliation

As explained in the previous section, there are many different possible ways that an employer could illegally retaliate against you within the employment context. It is impossible to cover every situation involving adverse employment actions.

Retaliation can take the form of staffing changes after you return from FMLA leave. The FMLA requires an employer to allow you to continue working in either the same position you left or in a substantially similar position.

The position can legally be a different position and it can even be in a different department. There is no guarantee your exact position will be open, in your same spot, in your same department. However, you may have a claim for retaliation if you return to work and have found that you:

  • Have been demoted;
  • Are given less pay in your new position;
  • Lose seniority and must start at the bottom of the ladder again;
  • Are no longer eligible for a promotion that you are qualified for;
  • Are being kept off of prestigious accounts or additional responsibilities because of your leave;
  • Have been diverted to “mommy” track; or
  • Are now required to do things in your new position that you were not before, such as lift heavy objects or work in a position where you are on your feet all day.

All of these actions by the employer are called adverse employer actions, which are prohibited and is the basis for suing your employer for FMLA retaliation.

What Is An Adverse Employment Action Objective standard?

The behavior or action committed by your employer is called the adverse employment action. So, just what is an adverse employment action? Adverse employment actions are employment decisions that negatively impact you as the employee, and is then the basis for your lawsuit or claim against the employer for FMLA retaliation. The Supreme Court has held that in order for the Court to determine whether an employer’s actions actually constitutes an adverse employment action that is legally prohibited, each action must be judged on a case by case basis. This makes it very fact specific. Accordingly, just by interpreting a company’s terms and conditions regarding FMLA as negative does not necessarily make those terms and conditions a legitimate adverse employment action that is prohibited. These terms and conditions need to be individually applied to the claimant’s fact pattern.

How Does FMLA Protect You?

The FMLA provides qualifying employees with up to 12 weeks of unpaid, job-protected leave each year. All 12 weeks do not need to be used at the same time and employees can take FMLA leave on multiple different occasions as long as they do not exceed a total of 12 weeks of leave over the course of the year.

Employees can use leave only as needed (often referred to as “intermittent” leave) and must return to work as soon as they are able. If an employee takes more leave than allowed under the law, the employee can legally be fired. It also requires that qualifying employees’ group health benefits be maintained during the leave period.

The FMLA is intended to assist employees in balancing their work and personal life responsibilities by allowing them to take short periods of unpaid leave for family and medical reasons. The law was also drafted narrowly to accommodate an employer’s business interest to avoid overburdening an employer in the marketplace.

The FMLA applies to various employers including public agencies, public and private primary and secondary schools, and any company that employs 50 or more employees. Those employers must provide each eligible employee with up to twelve weeks of unpaid leave each year for any of the following reasons:

  • Medical leave for any employee’s serious health condition that renders them unable to work;
  • The birth and care of a newborn child or the adoption/foster care of a child; or
  • Medical emergencies and the provision of medical care for an immediate family member (spouse, child, or parent) with a serious health condition.

An employee is eligible for FMLA leave if he or she has worked for the employer for at least 12 months and has worked at least 1,250 hours over the past 12 months.

Things to Do Before You Take FMLA Leave

There are many reasons that employees may take FMLA leave. Many of these reasons will be due to sudden medical emergencies, whereas others may be planned events such as a pre-scheduled surgery.

fmla violations by employers

If you have the time to plan medical leave as in the case of scheduled surgery, pregnancy, adoption, or some other known leave date, you will want to discuss your taking leave with your employer’s HR department. There are several reasons for this.

First, placing HR on notice will make it much more likely that your employer can plan around your absence, which makes retaliation less likely.

Second, discussing your plans with HR will allow your employer to voice any concerns they have with your leave time so that you and your employer can work out a deal that works for everyone. Some of the things you should discuss with HR about taking FMLA leave should be:

  • Whether your company requires you to use accrued paid time off to cover some or all of your FMLA leave.
  • Whether there is any paperwork that must be filled out. Make sure you complete all paperwork before taking leave. You don’t want the concern of unfinished paperwork hanging over your head.
  • Whether your leave will be full-time or intermittent.
  • Whether a medical certification (doctor’s note) is required.
  • How benefits other than health insurance will be dealt with during leave.

If your leave is unexpected, such as in the case of an auto accident or family medical emergency, you are expected to contact your employer and complete any paperwork they need within a “reasonable” time of taking leave.

Under the FMLA, a “reasonable time” is generally considered to be a few business days, but the timing will depend largely on the circumstances that required you to take leave in the first place.

For example, if your parent suffered a heart attack, you must contact your employer as soon as possible after you take leave or you could be fired for being absent from work. On the other hand, if you are in a car accident and are hospitalized under heavy anesthesia, the FMLA will not require you to sign paperwork for leave time until you are medically able to do so.

In general, you should act promptly to notify your employer of the need for leave in conformance with their call-out or leave request procedures if possible. If you simply cannot comply with the employer’s procedures, take the steps necessary to get in touch with the employer as soon as possible, even if you need to ask a third party (such as your spouse or parent) to assist you by calling your employer.

What to Expect When You Return

As stated previously, the FMLA guarantees that when you return from leave, you will either get your same job back or some equivalent job. However, that does not always happen as expected. This is probably the most shocking part for most employees.

Employees expect to return back to the exact same job, at the same desk, with the same view, but the law does not ensure that. The law only says you must be restored to an equivalent job. The department you work in and the office space you have may change, but your employer must provide the same pay, benefits, and employment conditions.

Additionally, you cannot be stripped of any benefits that you earned or were entitled to before you took leave, such as seniority benefits or a pension plan.

What to Do if You Have Experienced FMLA Retaliation

If you have experienced any type of job displacement or demotion after returning from medical leave, you may be a victim of FMLA retaliation. The first thing you need to do is document the details of the actions you believe constitute adverse employment actions and those involved with them. Then, you should contact a wrongful termination lawyer.

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    What Damages Are Recoverable FMLA Claims?

    For any FMLA violations by employers, damages can be sought by the employee. If the employer violates the FMLA, the employer will be required to reinstate the employee’s previous position or to one which is comparable prior to their termination. In addition, the employee shall be entitled to monetary damages. This includes back wages. The employee shall be entitled to any back pay from when they were terminated up to when the court decision or settlement was reached. This also may include lost benefits as well, such as insurance benefits, stock options, etc.

    Actual Monetary Losses. In addition to back wages, the employee shall also be entitled to actual loss compensation as a result of being terminated. An example of this would be if the employee had two jobs, but as a result of being fired by one of their employers due to FMLA violations, that employee then entered into a deep depression, resulting in them not being able to work at their 2nd job. That employee would then be entitled to the loss compensation from their 2nd job due to the primary employer committing the FMLA violations.

    Liquidated Damages. Liquidated damages combine the money owed from back wages and actual monetary loss, and then add interest. Where the court determines that the FMLA abuse was intentional on the part of the employer, liquidated damages are only commonly awarded.

    Where an employee exercised his or her FMLA rights by hiring a lost wages lawyer who focuses in employment law and FMLA retaliation, that employee’s chances to recover increase tenfold.

    Frequently Asked Questions About FMLA Leave Retaliation

    Can You Get Fired For Abusing FMLA?

    Yes. Any form of abuse or fraud of FMLA benefits is prohibited and is actionable by termination by the employer.

    Can FMLA Be Denied By Your Employer?

    FMLA may be denied by your employer if the employer has evidence to indicate that the employee does not have a legitimate serious medical condition as described by the FMLA requirements. In order to have a serious medical condition to qualify, the employee must suffer some measure of incapacity that prevents them from being able to continue with their employment through the employer. Just because they may have a certain diagnosis or condition does not automatically mean that they are entitled to FMLA benefits and protection.

    What Happens If FMLA Is Denied?

    Consult an employment law and FMLA retaliation attorney right away. They will be able to review your facts and determine what options are available to you.

    What is FMLA retaliation and how do I know if I have been retaliated against?

    Retaliation is an illegal practice in which an employer takes an adverse employment action against you for taking FMLA leave. If you return from leave to find that your job has been eliminated, your pay has dropped, or you are asked to perform a different kind of work than previously, you may have a case for FMLA leave retaliation.

    How can I prove FMLA retaliation?

    To prove FMLA retaliation, you need to prove four things:
    • that the FMLA applies to your employer (your employer must either be a public sector employer, a primary or secondary school, or employ over 50 employees);
    • that you were eligible to take FMLA leave time;
    • that you returned to work and faced an adverse employment action; and
    • that the adverse action was caused by retaliation.

    Who qualifies for leave under the FMLA?

    Only employees who have worked for their current employer for at least twelve months and who have worked at least 1,250 hours in the last twelve months qualify for FMLA leave.

    How can I structure my FMLA leave time?

    Each employee receives a total of twelve weeks of unpaid medical leave each year. Those 12 weeks may be taken simultaneously or may be taken intermittently.

    What counts as an adverse employment action?

    The legal definition of an adverse employment action is “any action by the employer that is likely to dissuade a reasonable worker in the plaintiff’s position from exercising his legal rights.”

    What government agency is responsible for enforcing the FMLA?

    The U.S. Department of Labor is responsible for enforcing the FMLA. Each state may have additional medical leave rules applicable to your state. In New York, paid family leave is enforced by the New York Department of Labor.

    When should I tell my employer about taking FMLA leave?

    As soon as you can. The sooner you tell your employee before you take leave, the more time your employer has to prepare for your absence, which will reduce the risk of any retaliatory action. If your leave was taken for emergency reasons, call, email, or text your employer the details of your anticipated leave as soon as possible.

    What should I do if I have been retaliated against?

    First, preserve evidence, meaning keep any emails, letters, or other evidence of the retaliation safe. Second, contact an employment law attorney before discussing your legal claim with your employer.

    FMLA Lawyers Free Consultation

    If you’ve just given birth and find yourself requiring time off to care for your newborn, under the FMLA, you are entitled to 12 weeks of unpaid leave. Or, if you find yourself incapacitated due to a medical condition, the FMLA gives you some protection by prohibiting your immediate termination. If you find yourself in a situation where you think that you require FMLA protection and your employer has either violated FMLA or denied you, a FMLA law firm with FMLA lawyers who are familiar with FMLA and have the experience, trial knowledge, and ability to file a FMLA lawsuit on your behalf. FMLA is a very specialized area of law, so you need to consult with an experienced FMLA law firm for a free consultation.

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    While few employees expect the workplace to look exactly the same as it did before their medical leave, many employees return to work to find their hours cut, their wages decreased, or their positions changed. These types of serious adverse employment actions could serve as the basis of a lawsuit. If you have experienced unlawful retaliation, you should contact an attorney to discuss your possible legal claim.

    Have you ever had a bad experience after taking medical leave?

    Do you know anyone who has lost his or her job or returned to work with a reduced salary after taking medical leave?

    If so, we would appreciate the opportunity to hear your stories.

    Disclaimer: The information on this webpage should not be considered legal advice. Every case is different. If after reading the article, you have questions, you should call an experienced labor and employment attorney.

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