The Department of Labor recently issued a Fact Sheet for employers regarding prohibited retaliation under the Family and Medical Leave Act (FMLA). The FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons under the same terms and conditions as if the employee had not taken leave. The FMLA applies to private-sector employers who have more than 50 employees.

The FMLA prohibits employers from: (1) interfering with, restraining, or denying the exercise of, or the attempt to exercise, any FMLA right; (2) discriminating or retaliating against an employee or prospective employee for having exercised or attempted to exercise any FMLA right; (3) 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; (4) 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.

The Fact Sheet lists examples of prohibited conducted:

• 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
• Counting FMLA leave under “no fault” attendance policies

The DOL Wage and Hour Division administers and enforces the FMLA for all private-sector employees and investigates complaints. The FMLA also provides for private causes of action by employees.For more information, click here to read the FMLA Fact Sheet.

Our employment practice group is always available for any FMLA compliance questions.

By Ken Short, kshort@dsda.com