Do You Know the Rule? Actions that Could Count as ‘Adverse’ for Purposes of FMLA Retaliation

Sarasota, FL (WorkersCompensation.com) -- To establish an FMLA retaliation claim, an employee must show that: 1) the employee exercised his rights under FMLA; 2) the employer engaged in adverse action; and 3) the employer engaged in the adverse action because of the employee’s exercise of his FMLA rights.

Because demonstrating an adverse action is a key component of an FMLA retaliation claim, employers should know what types of actions qualify.

Generally, employers should know that:

--> What constitutes an adverse action is decided objectively. Thus, an adverse action is one that would dissuade a reasonable employee from exercising his rights.
--> An adverse employment action must be more than a mere inconvenience or an alteration of job responsibilities without more.
--> In general, courts look at whether the action negatively impacted the employee’s salary, hours, benefits, grade, or prestige/standing among coworkers.

Employers should also be aware of the most common types of actions that lead to retaliation claims and could qualify as “adverse” (this list is not exhaustive):

--> Counting FMLA leave as an absence under the employer’s attendance policy.
--> Changing the employee’s shift after he returns from leave or reinstating the employee to a lesser position.
--> Firing the employee.
--> Reducing the employee’s pay or benefits after he returns from leave.
--> Suspending the employee.
--> Giving the employee a poor performance evaluation.
--> Declining to promote an employee.

There are some actions in the workplace that may seem, from the employee’s perspective, to be adverse, but which are unlikely to qualify for purposes of an FMLA retaliation claim. Some examples are:

--> Being rude to the employee.
--> Annoying the employee.
--> Slighting the employee.

Even if an employee establishes an adverse action, he still must demonstrate the other two elements of his claim: 1) that he exercised his FMLA rights; and 2) that his exercise of those rights is causally connected to the adverse action.

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