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Paid leave can be adverse employment action

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in Compensation and Benefits,FMLA Guidelines,Human Resources

It seems counter-intuitive, but putting someone on paid administrative leave can be an adverse employment action and the basis for a lawsuit. That’s because not being able to work and progress in one’s career can be harmful.

Recent case: Kevin left his job with the FBI to become a special agent with the Pennsylvania Attorney General’s office under former Attorney General Kathleen Kane. Soon, according to Kevin, Kane accused him of spying on her for the FBI. He denied the allegations.

Then he sent Kane a memo complaining about a case she had closed that he believed should have been prosecuted. Later, Kevin was required to testify before a grand jury against Kane, which apparently further angered her.

Kevin went out on 12 weeks of FMLA leave and then asked for a few more weeks off. The request was approved. When he tried to return, he was told he could not. He was placed on paid administrative leave.

By the time he sued—alleging that not bringing him back violated his FMLA rights—Kevin had been on paid leave for a year.

The court first considered whether paid administrative leave could be the basis for a lawsuit. The court agreed the leave was an adverse employment action. However, because Kevin had not tried to return to work at the end of his 12 weeks of protected FMLA leave, his lawsuit was dismissed anyway. (Wevodau v. Kane, et al., No. 1:16-CV-0743, MD PA, 2017)

Final note: The FMLA is clear that the right to one’s job or an equivalent position ends if the worker doesn’t return to work at the end of the 12-week FMLA period. If you provide additional leave, the employee may not need to be reinstated.

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