Make sure any demotions that happen to occur duringare clearly unrelated to the fact that the employee exercised his .
Otherwise, a court may conclude your actions amounted to interference with the right to take leave and were intended to punish the employee.
Recent case: Sam worked for many years as a skilled laborer, earning great reviews, including one that stated he was operating at his career peak.
Then he took a series of medical leaves in order to have eye surgery. Each time when he returned to work, he learned that his position had been changed and that he was required to take a pay cut.
Sam sued, alleging interference withleave and argued that he should have been reinstated each time to his old position.
He pointed to his good reviews as evidence that his performance wasn’t a factor in the demotions. Therefore, he argued, the reason had to be his use of protected leave.
The court said Sam had enough evidence to take the case to trial. The jury will now decide whether the demotions were justified by solid business reasons or were just an excuse to punish Sam for taking FMLA leave. (Razo v. Timec, et al., No. 15-CV-03414, ND CA, 2016)
Final note: If you are planning on making changes to an employee’s position and he happens to be on FMLA leave, make sure to very carefully document the underlying reasons. If the change affects other employees, it will help if none of them took FMLA leave.
Under the FMLA, you are allowed to take action you ordinarily would have taken even if an employee hadn’t taken leave. However, that means you must be prepared to prove a negative: That the FMLA leave had nothing to do with your decision.