Know What Retaliation Is, So You Can Prevent It

Most employment laws include provisions protecting employees from vindictive managers who would otherwise punish them for exercising their rights. The Family and Medical Leave Act is no exception. Late last year, the Department of Labor’s Wage and Hour Division released Fact Sheet # 77B explaining the FMLA’s anti-retaliatory provisions. Here are some highlights:

Prohibitions

• An employer is prohibited from interfering with, restraining, or denying the exercise of, or the attempt to exercise, any FMLA right.
• An employer is prohibited from discriminating or retaliating against an employee or prospective employee for having exercised or attempted to exercise any FMLA right.
• An employer is prohibited from discharging or in any other way discriminating against any person, whether or not an employee, for opposing or complaining about any unlawful practice under the FMLA.
• All persons, whether or not employers, are prohibited from discharging or in any other way discriminating against any person, whether or not an employee, because that person has:

– Filed any charge, has instituted, or caused to be instituted, any proceeding under or related to the FMLA;

– Given, or is about to give, any information in connection with an inquiry or proceeding relating to any right under the FMLA; or

– Testified, or is about to testify, in any inquiry or proceeding relating to a right under the FMLA.

Examples of Prohibited Employer Conduct

• Refusing to authorize FMLA leave for an eligible employee;
• Discouraging an employee from using FMLA leave;
• Manipulating an employee’s work hours to avoid responsibilities under the FMLA;
• Using an employee’s request for or use of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions, or;
• Counting FMLA leave under “no fault” attendance policies.