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You can reassign employee whose spouse made FMLA claim

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in Employment Law,FMLA Guidelines,Human Resources,Leaders & Managers,Performance Reviews

Employers know they can’t retaliate against employees for speaking with EEOC investigators about possible discrimination. They also know they can’t prevent employees from testifying in court about supposed discrimination. They can’t punish them for it either.

But what about simply standing by as a spouse or significant other sues the same employer? Do you have to worry that any job changes for the silent spouse will spur a successful retaliation lawsuit?

Probably not, if the following case is any indication.

Recent case: Lawrence Elsensohn worked for the St. Tammany Parish Sheriff’s Office as a law enforcement officer. His wife had also worked for the Sheriff’s Office, but left after suing her employer for FMLA violations. She eventually settled her case.

Elsensohn said he had not been involved in his wife’s FMLA claim, other than to provide her with “moral support.” He would have been a witness in her case but never had to testify since the case never made it into court.

Elsensohn later alleged that the warden of the St. Tammany Parish Jail was harassing him. He presumed it had to do with his wife’s FMLA claim. Elsensohn complained to the department’s internal affairs unit and got assurances that it wouldn’t happen again. He proceeded to receive excellent performance reviews—for a while.

Then he began to apply for promotions, and the department denied him each time. When he asked his supervisors what the problem might be, he got a surprising answer. Elsensohn was told that he would not be receiving promotions of any kind, and that his chances for advancement were “closed off.” Shortly thereafter, Elsensohn was involuntarily assigned to the night shift, losing his holiday and overtime pay opportunities. He also was banned from seeking secondary and supplemental employment.

Elsensohn sued, alleging the department was denying him opportunities because he had opposed his employer’s FMLA practices when he supported his wife’s settled lawsuit. In other words, he alleged that his association with another employee who had sued the sheriff’s office led to retaliation. He relied on a section of the FMLA that says employers can’t discriminate against employees because they have given or are about to give information to aid an FMLA investigation.

The 5th Circuit Court of Appeals dismissed the case. First, it pointed out that Elsensohn had not provided information of any kind in his wife’s FMLA lawsuit since he specifically said he had “attempted not to involve himself in his wife’s FMLA claim.” Second, he never actually testified in any proceeding and was not “about to testify,” since her suit was settled. (Elsensohn v. St. Tammany Parish Sheriff’s Office, et al., No. 07-30693, 5th Cir., 2008)

Final Note:
This case turned on a technicality—that the husband hadn’t been actively involved in his wife’s lawsuit and settlement. Had he, for example, gone with his wife to the EEOC or provided the agency with a sworn statement as part of its investigation, he probably would have been protected by the anti-retaliation provisions.

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