November 16, 2020, by HR Search & Rescue The Family and Medical Leave Act (FMLA) offers provisions for ordinary employees to take necessary time off for health and familial reasons without the risk of being replaced or fired. It is estimated that up to 10% of the American workforce is taking FMLA leave at any one time. There are strict protections guaranteeing that employers can not retaliate against employees who take FMLA leave. Employees need to be aware of what constitutes FMLA harassment and when they should take action to protect their rights. What Is FMLA Harassment? FMLA harassment takes many forms. The easiest way to notice whether an employer is retaliating against an employee on FMLA leave is a change in the work environment. The majority of retaliation cases occur after the employee has returned to work. Changes in the work environment may be blatant, such as a demotion, or subtle, such as forcing unreasonable workloads upon returning employees. Take note, FMLA harassment is not exclusive to employers. Coworkers can also be accused of violating a fellow employee’s rights through harassment. It remains, however, the responsibility of the employer to ensure this does not occur. Examples Of FMLA Harassment The FMLA statute itself contains no prohibition against discrimination and retaliation. The statute states that it is unlawful to interfere, deny or restrain an employee from taking advantage of their rights under the Act. The U.S. Department of Labor, however, has published regulations that make it unlawful to discriminate against employees who take FMLA leave. Due to the many forms which FMLA harassment takes, employees need to familiarize themselves with some of the practices which could constitute harassment. Receiving A Demotion Or Less Pay The most obvious form of FMLA harassment is being demoted or receiving a pay cut. However, sometimes demotions and pay cuts can be initiated in a more subtle way. For example, employees who work part-time on FMLA leave may be told that they cannot carry out their duties part-time; therefore, they are transferred to a lesser position and receive a pay cut. This would also constitute a form of FMLA harassment. Getting Removed From Client Accounts A loss of responsibility is another type of FMLA harassment. Employees who take FMLA leave should be returned to their former positions once they return to work. It is reasonable to expect that client accounts may be transferred to other personnel temporarily. Under the terms of FMLA leave, employees are to be returned to their former positions once their period of leave concludes. Taking On An Unreasonable Workload Previous instances of FMLA harassment have included employers using other methods to find an excuse to either demote or terminate an employee. Employers may increase the workload a returning employee is required to manage. When they inevitably cannot manage this unreasonable workload, the employer demotes or terminates the employer under the guise of them failing to meet the standards expected of them. Being Terminated Due To Leave Finally, FMLA retaliation can take the form of termination. Employers may only terminate employees under a limited set of circumstances. In almost all cases where an employee has taken FMLA leave and being subsequently terminated months later, there has been a case for FMLA harassment. What Should I Do If I Am Facing FMLA Harassment? Employees facing FMLA harassment may be afraid to speak out and take action. Ignoring retaliation means allowing an employer to infringe upon employee rights that are enshrined by law. If FMLA harassment or retaliation is suspected, employees should begin by documenting the details of any incidents which they believe constitute retaliation. A particular focus should be placed on comparing working conditions and duties prior to the period of FMLA leave. In the event there have been significant changes, there is a high likelihood that FMLA harassment has occurred. The next step is to contact an attorney specializing in FMLA harassment cases, and they will be able to provide further advice on how to proceed. How To File An FMLA Claim Filing an FMLA claim is complex and should not be attempted without the assistance of an attorney specializing in these types of claims. There are two ways to file an FMLA claim. Complaints can be filed directly with the Secretary of Labor. Alternatively, private lawsuits may be filed in accordance with section 107 of the FMLA. There are time limits on FMLA claims. Employees have three years to file their claims from the date the alleged offenses occurred. Employees are urged to file their claims as soon as possible. Speak With An HR Consultant About FMLA Harassment FMLA harassment is a serious offense that can cause severe damage to a business. Employers who are unaware of the provisions set down by this Act may find themselves inadvertently committing an offense. Both employees and employers should familiarize themselves with this subject to prevent harassment and/or retaliation. Speak to an HR consultant from HR Search & Rescue to find out more about how FMLA works.
