We have people out on leave. Some employees take intermittent leave and others are out for chunks of time. Our managers complain to me about how disruptive these absences are. I’m worried that the managers are going to retaliate against the workers. What should we be doing to prevent this? —Heather S., Sacramento
Organizations are well advised to address situations of potential retaliation proactively. These types of claims have been on the upswing. While determining eligibility for taking leaves of absence under the federal Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) is fairly straightforward, the difficulties seem to lie in how employees are treated while on leave or on returning from leave.
The legal elements of a retaliation claim are: 1) the employee complained of a potential legal violation or engaged in a protected legal activity; 2) an adverse action was taken against the employee; and 3) there is a connection between the two events that indicates that the adverse action occurred because of the complaint or protected activity. To defend against such a claim, the employer must prove that it had a legitimate, nonretaliatory reason for taking the adverse action.
In general, if an employee is eligible and requests or takes a leave of absence provided by law, the first element will be met. The second element requires an adverse action—an event serious and tangible enough to alter the employee’s compensation or terms or conditions of employment. Tangible employment actions such as a job reassignment, transfer to a different work location, demotion, disciplinary action, termination, or substantial decrease in benefits would qualify. One California court has noted that an action is adverse if it is reasonably likely to impair the employee’s job performance.
The last element, the connection (known in legal terms as the “nexus”), is generally demonstrated through timing. For example, the employee is demoted when he or she returns from a leave of absence. The courts have not provided, and will not provide, a hard and fast rule with respect to this timing. However, the more time that passes between an employee’s exercising of leave of absence rights and the adverse action, the less chance the two events will seem related to each other.
Many employees believe that they have been retaliated against if their co-workers or their managers are not friendly to them (e.g., nobody says hello) or are less than helpful (e.g., ignoring their questions or requests) when they return from leave. However, subtle or not-so-subtle forms of displeasure toward the employee that do not result in a tangible employment action most likely won’t constitute unlawful retaliation.
Furthermore, co-workers cannot retaliate because they don’t have the authority to discipline or terminate. However, they could create situations in which an employee returning from leave cannot work effectively, which could lead to corrective discipline against the employee—an adverse action. Or, co-workers’ actions could be sufficiently severe and offensive based on the returning employee’s medical condition to constitute harassment.
For example, a federal appeals court upheld a jury verdict in favor of a terminated employee on her retaliation claim under the FMLA. The employee suffered from depression and used a combination of personal days, vacation days, and FMLA leave to cover her depression-related absences. She used intermittent FMLA leave to cover days when she needed to come in late or leave early because of her depression. The employee testified that her supervisor questioned whether she was really sick under the FMLA guidelines every time she was absent. The employer defended itself by presenting evidence that the employee was terminated not in retaliation for using FMLA leave, but for using a cell phone during work hours and for frequent absences not covered by FMLA, vacation, or personal leave.
In upholding the jury verdict, the court found that it was not unreasonable for the jury to conclude that, but for the employer’s harassment of the employee for her protected leave, her condition may not have been exacerbated enough that she would have needed to take FMLA leave over and above her paid vacation and personal leave time. This case demonstrates the importance of avoiding conduct that may worsen an employee’s condition.
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Finally, employers must always have legitimate reasons for termination that will appear valid to a third party (such as a jury). There should be a significant reason for terminating an employee who takes intermittent leave or has just returned from leave—not a minor violation or a technicality such as using a cell phone at work.
Practical Tips
Here are practical tips for preventing retaliation against employees going out on leaves:
- Educate managers on the legal protections that employees have who take legally sanctioned leaves of absence, such as an FMLA/CFRA leave, and the ramifications of retaliation.
- Gauge the morale of the work unit before the employee on leave returns to work and, if warranted, team build with the group and/or coach the manager.
- Check in with the employee no later than 30 days after he or she returns and promptly address any concerns.
- Address performance problems of the returning employee in a carefully documented manner.
—Mary L. Topliff, Esq., is principal of the Law Offices of Mary L. Topliff in San Francisco, specializing in employment law counseling, training, and compliance.