Understanding FMLA Retaliation in the Workplace
Qualified employees who are pregnant or have a serious medical condition are guaranteed a certain amount of leave time and job security under the federal Family and Medical Leave Act (FMLA). However, employers often unlawfully retaliate after employees use their FMLA time. Fortunately, New Jersey state and federal laws prohibit employer retaliation when an employee engages in the following activity:
- Taking family medical leave;
- Pregnancy leave; and/or
- Seeking accommodations under the Americans with Disabilities Act (ADA).
With offices in Red Bank, NJ and Marlton, NJ, McOmber McOmber & Luber, P.C. has experience in representing employees who have faced FMLA retaliation in the workplace. If you have been the target of disciplinary actions or harassment because you took leave for pregnancy or medical conditions, your employer may be responsible for compensating. This compensation may include economic damages and damages for pain and suffering. Our experienced FMLA lawyers can get you the compensation you deserve.
Who is Eligible for FMLA Protection?
To be eligible under the FMLA, employees must have worked a minimum total of 1,250 hours for their employer to request FMLA leave. Under FMLA, employers with 50 or more employees within a 75-mile radius are required to provide 12 unpaid work weeks of leave to eligible employees annually.
The medical conditions protected under the FMLA are specific and include:
- Birth of a child and time to bond with the newborn;
- Placement and bonding time with an adopted child or foster care child;
- Care of a spouse, child, biological or adoptive parent with a serious medical or health condition;
- FMLA protection covers leave for an employee’s own serious health condition;
- Care of a seriously wounded or ill spouse, child, or parent active in the military, including the National Guard, Reserves, or other branches of the military; and
- In the case of leave requested for an active duty military family member, the laws allow for 26 weeks of unpaid leave.
What is Considered FMLA Retaliation in New Jersey?
If you have taken leave provided by the FMLA, it is important to know what retaliation looks like in case it happens. FMLA retaliation often stems from employers, but can also come from coworkers in the workplace. This retaliation can take many forms, both major and minor, as long as it happens because you took leave. This can include:
- Job transfers
- Loss of benefits
- Jokes or teasing
If you can demonstrate that your employer took any of these actions as a result of you taking FMLA time, you may have a retaliation case and should speak to one of our experienced FMLA lawyers as soon as possible to discuss your options. We can help ensure that you make strategic decisions for the next steps, including filing complaints with your employer, your union, or pursuing legal action.
Common FMLA Violations
Retaliation such as terminating or demoting an employee for taking leave is an obvious violation of the FMLA, but there are many other types of violations that are not as clear cut. Your employer may violate your FMLA rights by:
- Misunderstanding what counts as a serious medical condition;
- Disciplining employees for taking leave for a legitimate reason;
- Discontinuing health insurance while the employee is on leave;
- Excessive contact with the employee about work-related issues while on leave;
- Pressuring the employee to return to work early;
- Demoting an employee who returns from leave or offering a lower salary or benefits;
- Misclassifying an employee as a ‘key employee’ and claiming that they are not required to be reinstated on the basis of economic harm to the company; and
- Delaying reinstatement to an employee’s position after they return from leave.
If any of these situations occurred, or you feel that your rights under the FMLA have otherwise been violated, contact our law firm as soon as possible to discuss your options.
FMLA Retaliation and Employment Discrimination
The New Jersey Law Against Discrimination (NJLAD) provides strong protections for employees from many forms of employment discrimination against protected classes. When an employer retaliates against an employee because they took leave, it may infringe on discrimination protections afforded by the NJLAD. FMLA violations often overlap with other forms of employment discrimination, including but not limited to:
- Pregnancy Discrimination
- Disability Discrimination
- Gender Discrimination
- Marital Status Discrimination
- Pumping & Breastfeeding in the Workplace
- Sexual Harassment in the Workplace
Job Security Protection Under FMLA
Upon returning to work, the employee is entitled to their previous position without demotion or salary reduction. If the position is no longer available, the employer must offer the employee a position similar in salary, benefits, and status. If a layoff or reduction in force took place while the employee was out on leave, the worker would still be eligible for the same rights and protections as those employees that were not on leave.
If you return to work after taking FMLA leave and find that your previous position is unavailable, and your employer is not willing to offer you a similar position, you should contact our offices.
Experienced New Jersey FMLA Lawyers Can Help You
If you have been denied your rights under the FMLA, or faced FMLA retaliation in the workplace for taking leave or complaining, contact the FMLA lawyers at McOmber McOmber & Luber, P.C. today. We have offices in Red Bank, NJ and Marlton, NJ and we serve clients throughout the state. We can discuss your situation and help you determine the best course of action to get the justice you deserve.