Timing is everything in FMLA retaliation cases

Here’s a hypothetical situation that shows how important it is to be aware of the calendar when dealing with the FMLA: Let’s say you decide to alter your staffing structure for business reasons. However, before you announce the changes, an employee says she will soon need to take FMLA leave. Lo and behold, that employee is among those affected by the reorganization.

What would you do if the employee sued, claiming you retaliated because she wanted to take FMLA leave? How would you counter that claim?

It’s actually relatively easy: Just document and date all important employment decisions as soon as you make them. Those records will help you prove that any request for FMLA leave that came afterward can clearly not form the basis for a retaliation claim.

Recent case: Jessica worked as an account executive for several years. In early January 2012, management reacted to business pressures by planning several personnel moves, including transferring Jessica to a different position. However, they held off telling the affected employees. A few weeks later, Jessica announced she was pregnant. Management authorized FMLA leave starting in June.

When Jessica returned in August, she learned she would have new job duties and a new position—which she considered a demotion. She sued, alleging retaliation for taking FMLA leave.

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The court tossed out the lawsuit. It reasoned that because the company could show it made the decision before Jessica announced her pregnancy, it couldn’t have used her pregnancy and her need for FMLA leave against her. (Brown v. DDS, No. 13-218, DC MN, 2014)