Does the FMLA apply to My Employer?
In order to have a cause of action for FMLA retaliation, you must first determine whether your employer is subject to certain Family and Medical Leave Act (FMLA) regulations. In order for an employer to be subject to FMLA regulations, it must have more than fifty employees. Don’t be quick to dismiss your employer’s qualifications just because there aren’t fifty employees in your office. A skilled labor lawyer may be able to establish that through the combination of other offices or parent organizations that your employer has fifty or more employees.
What does FMLA Provide?
The FMLA provides employees that have been employed a year or longer with up to twelve weeks of unpaid leave for the birth of a child and to care for the newborn child within one year of birth; the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement; to care for the employee’s spouse, child, or parent who has a serious health condition; a serious health condition that makes the employee unable to perform the essential functions of his or her job; any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty”
What is FMLA Retaliation?
The FMLA says that if your employer tries to interfere with or deny your FMLA rights OR if your employer retaliates against you for exercising your FMLA rights, you can file a complaint with the US Department of Labor and/or a lawsuit.
Do I Have a FMLA Retaliation Claim and What Should I do?
It’s rare that an employer admits that it’s firing an employee because that employee took FMLA leave. If that were the case, it would be easy to prove an FMLA retaliation case.
Instead, we have searched for circumstantial evidence of the FMLA retaliation.
For example, we would look for the temporal proximity between the leave you took and your termination. The closer in time that you were fired from the time you took leave, the more likely you were fired for taking the leave.
That being said, some employers have wised up. Take for example a young mother with one child. If the employer suspects that the mother is going to have more children in the near future, it may wait a “reasonable” time from the birth (and associated leave) of the first child before terminating the mother. Its intention would be to terminate the mother before she becomes pregnant with her second and possibly third child.
If you feel that you’re the victim of FMLA retaliation, contact a Fort Worth FMLA retaliation lawyer at Hutchison & Stoy, PLLC. You can reach us by phone at (817)820-0100 or fill out a free case evaluation online.