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Feel free to make routine shift changes–courts won’t consider that evidence of retaliation

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in FMLA Guidelines,Human Resources

Generally, employees claiming they suffered retaliation after engaging in protected activity—such as complaining about discrimination or taking protected FMLA leave—must show that the retaliation would have dissuaded a reasonable employee from complaining or taking leave.

The hypothetical reasonable employee standard isn’t very specific, and it’s subject to interpretation. While a drastic change in working conditions would probably affect a reasonable employee, other changes might not. That includes minor shift changes, especially ones that happen commonly in the workplace.

Recent case: After Martha took FMLA leave and returned to work, she found that her shift had changed. Before, she worked a four-day, 40-hour workweek. After, those 40 hours were spread over five days.

She sued, alleging the change was retaliation for taking FMLA leave.

After examining the employer’s policies, the court disagreed. Martha’s employer considered the four-day arrangement a privilege reserved for employees who could successfully complete their work in a short week. When employees could not, they were shifted back to five days.

Because nothing else changed, and because shift adjustments were common, the court dismissed Martha’s lawsuit. It said the change she en­­dured wouldn’t have discouraged a reasonable co-worker from taking FMLA leave. (Lushute v. Louisiana, No. 12-30013, 5th Cir., 2012)

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