What is Considered FMLA Harassment?

Nov 29, 2024 / Workplace Discrimination

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FMLA (Family and Medical Leave Act) harassment occurs when an employer interferes with, penalizes, or retaliates against an employee for using their legally entitled FMLA leave. FMLA entitles eligible employees in California to take up to 12 weeks of unpaid leave that is job-protected, annually, for specific family or medical reasons, including personal health issues, caring for a new child, or assisting family members with a serious health condition. FMLA is a federal law, but California supplements FMLA protections with additional laws like the California Family Rights Act (CFRA), which provides similar rights and protections.

Defining FMLA Harassment

FMLA harassment generally involves actions by an employer that create a hostile environment or discourage an employee from using their FMLA rights. Examples of FMLA harassment can include:

Frequent inquiries about return dates or demands for updates during the leave.
Discouraging or questioning the employee’s use of FMLA leave.
Unwarranted disciplinary actions or demotions upon return from the employee’s FMLA leave.
Negative comments or attitude toward the employee’s use of FMLA leave.

Retaliation for FMLA Leave in California

FMLA retaliation occurs when an employer takes adverse actions against an employee specifically for taking FMLA leave. This could include termination, demotion, or unfavorable changes in job assignments. Retaliation is not allowed under both FMLA and CFRA, and California laws provide additional safeguards to prevent adverse actions after an employee has exercised their leave rights.

Legal Elements of FMLA Harassment and Retaliation Claims

To establish a case of FMLA harassment or retaliation in California, an employee must demonstrate:

Eligibility for FMLA or CFRA Leave: An employee must meet eligibility requirements, which typically include having worked for the employer for at least 12 months and having accumulated at least 1,250 hours of work in the year preceding the leave.
Protected Leave Taken: The employee must show that the leave taken was for a qualifying reason, such as personal or family illness, or the birth or adoption of a child.
Employer Knowledge: It must be shown that the employer was aware that the employee’s absence qualified under FMLA or CFRA.
Adverse Employment Action: Evidence must be provided that an adverse employment action (such as termination, demotion, or harassment) occurred shortly after or during the FMLA-protected leave.
Causal Connection: The employee must establish that the adverse action was due to their FMLA leave. This can be shown through timing (if the adverse action occurred soon after the leave) or through documented statements suggesting a negative attitude toward the leave.

Potential Remedies for FMLA Harassment and Retaliation

Employees who succeed in proving FMLA harassment or retaliation may be able to recover compensation, including:

Back Pay: Compensation for lost wages due to termination or demotion.
Reinstatement: The right to return to their previous role if they were terminated or demoted as retaliation.
Emotional Distress: Compensation for mental and emotional suffering caused by the employer’s actions.

Pursuing an FMLA Harassment or Retaliation Claim

Employees who believe they were affected by adverse employment actions as a result of their FMLA leave should contact an employment attorney from Lawyers for Justice, PC (LFJ) for more information. LFJ offers free consultations and has taken on countless wrongful termination cases over the past decade.

Penalties For FMLA Violations

California workers are entitled to protections under both the federal Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA), which ensure that eligible employees can take job-protected leave for qualifying family or medical reasons without fear of retaliation or harassment. However, some employers may attempt to interfere with an employee’s legal rights.

Examples of FMLA Violations

Interference with Leave Rights:
One common violation is an employer’s interference with an employee’s right to take FMLA or CFRA leave. For example, an employer may request that an employee continue working or handling job tasks while on leave. Another form of interference is denying a leave request for a qualifying reason, such as the birth of a child or a serious medical condition. In some cases, employers discourage employees from taking leave by threatening disciplinary actions if they do so.
Failing to Reinstate:
FMLA and CFRA require that employees be reinstated to the same or an equivalent position after returning from leave. An employer violates this right if they demote the employee, reduce their pay or responsibilities, or assign them to a significantly different role. For instance, if an employee returns from medical leave only to find that their position was filled and they are reassigned to a lower-paying job, this constitutes a violation of their reinstatement rights.
Retaliation for Taking Leave:
Retaliation includes any adverse employment action taken in response to an employee exercising their FMLA or CFRA rights. For example, an employee takes medical leave to care for a sick parent, and upon returning, they are demoted or have their hours cut. Retaliation can also include disciplinary actions, negative performance reviews, or exclusion from training or promotion opportunities solely because of leave.
Excessive Medical Documentation Requests:
Employers have the right to request documentation supporting the need for leave; however, they cannot excessively scrutinize or repeatedly demand documentation as a tactic to discourage leave. An employer violates FMLA/CFRA if they harass employees for more medical documentation than is reasonably required.

Potential Penalties for FMLA Violations

Employees who experience FMLA or CFRA violations have several options for recourse and may be entitled to various forms of compensation:

Back Pay:
If an employee is terminated, demoted, or has their pay cut because of FMLA leave, they may be entitled to back pay. This includes compensation for lost wages or the difference between the employee’s previous and reduced wages.
Front Pay:
In cases where reinstatement isn’t possible due to a strained relationship with the employer or other factors, courts may award front pay to compensate for future lost wages. This can cover expected earnings for a reasonable period, which can allow the employee time to secure a comparable job.
Reinstatement:
An employee who has been terminated or demoted in retaliation for FMLA leave may be reinstated to their original position or a similar role with equivalent pay, benefits, and responsibilities.
Emotional Distress Compensation:
California courts recognize that FMLA violations can cause stress, anxiety, and other emotional distress. Emotional distress compensation is possible, especially in cases where harassment, intimidation, or retaliatory actions have severely impacted the employee’s mental health.
Punitive Damages:
In cases where the employer’s conduct is found to be particularly egregious, employees may be entitled to more compensation. Additional compensation is meant to punish an employer and deter similar actions in the future.
Civil Penalties:
In some cases, employers who violate FMLA and CFRA can face civil penalties enforced by the U.S. Department of Labor (for FMLA violations) or the California Department of Fair Employment and Housing (for CFRA violations). These penalties vary but usually aim to reinforce compliance with family and medical leave rights.

What Happens If FMLA Is Denied? – FAQ

what happens if fmla is denied? If you want to take FMLA leave to care for a family member, or for another eligible reason, and your request is denied – despite being legally valid – you may want to consult an employment lawyer to see if there is a bigger issue at play.

how do i file a violation of fmla lawsuit? In order to file a lawsuit concerning unpaid, job protected leave, you should consult with an employment law attorney. LFJ offers FREE consultations.

can an employer force you to take fmla? If an employee needs to take FMLA, their employer can usually force it. However, if they do not need to take intermittent leave and are forced to, there could be an issue.

can you be fired if fmla is denied? California is an at-will employment state, so technically an employer can fire an employee at any time, as long is the firing doesn’t violate labor laws. However, an employee usually cannot be fired if they make a leave request and they are fired in retaliation for doing so.

can you be denied fmla? Covered employers generally cannot outright deny family medical leave rights if their employee meets the eligibility criteria.

can my employer deny fmla? The law states that: “(1) It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided” by the FMLA laws.

how do i file an fmla complaint against an employer? If you believe your rights under the FMLA have been violated, you may file a complaint with the California Wage and Hour Division, or file a private lawsuit against your employer with the help of an employment lawyer.

can i sue my employer if i’m fired for being sick? It is typically illegal for an employer to terminate a worker’s employment if they use sick leave that they accrued and are entitled to use. If they are fired for using sick leave, they might be able to file a lawsuit for wrongful termination.

can my employer discuss my fmla with other employees? An employer should not share information about another workers’ health to discourage co-workers from using FMLA leave.

what happens if an employer violates fmla? They could be subjected to penalties.

can my employer contact me while on fmla? There are no legal requirements to keep in touch with workers while they’re out on leave.