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FMLA mentioned? Beware inadvertent retaliation

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in FMLA Guidelines,Human Resources

Here’s a trap to avoid: After an employee tells you he needs FMLA leave, don’t let that information affect your decision-making about promotions or transfers. That could trigger a lawsuit.

Recent case: Barton worked as a teacher in Grand Prairie. After a transfer from a school close to his home to one farther away, he protested.

The reason: He told his principal that his wife had just been diagnosed with cancer. He wanted to work as close to home as possible and would need time off to care for her from time to time. The principal told Barton he would be considered for a transfer to a closer-to-home school if a job opened up.

Barton interviewed for two openings. Each time, he told the principal handling the interview that his wife had cancer and he would need FMLA leave. Each time, another teacher was picked.

Neither of the successful applicants mentioned a need for FMLA leave. They both had far less experience than Barton. Barton, however, was told he wasn’t selected because he lacked a “wow” factor.

He sued, alleging he had been rejected for the transfer because he had requested FMLA leave. In effect, he alleged he had been retaliated against by being denied a transfer to an open position.

The court said his case could go forward after Barton outlined all the negative factors his current teaching position entailed. He said he lost campus seniority, taught more-difficult students, had to complete more paperwork and had a commute that took three times as long.

The court said the conditions were adverse enough to dissuade a reasonable employee from requesting FMLA leave. (Scott v. Grand Prairie Independent School District, No. 3:11-2094, ND TX, 2012)

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