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Retaliation against an employee is unlawful only if the employee has engaged in a protected activity. There is no one source for a complete list of protected activities.  However, it generally includes actions such as filing for or requesting workers’ compensation benefits, reporting or complaining about unlawful discrimination or unlawful harassment, refusing to engage in an unlawful act and reporting an employer’s actions to an appropriate governmental agency.One interesting question in employment law is: should former employees be covered by anti-retaliation law? Under the FMLA, the answer is clearly, yes. The U.S. Department of Labor (DOL) has adopted regulations for interpreting and enforcing the FMLA.  Specifically, 29 CFR 825.220 covers the protection provided for employees who request or use FMLA leave time. The regulation provides protection in three situations.

  1.  Employers are prohibited from denying, interfering with or restraining an employee’s rights under the FMLA;
  2.  Employers are prohibited from discharging or discriminating against an employee who has opposed or complained about practices that are unlawful under the FMLA; and
  3.  Employers are prohibited from discharging or discriminating against an employee who has filed charges, instituted a proceeding, given or is about to give information related to an inquiry or proceeding under the FMLA or testified or is about to testify in an inquiry or proceeding under the FMLA.

This portion of the regulation is pretty standard in anti-retaliation provisions of employment statutes. However this FMLA regulation goes on to provide:

(c) The Act’s prohibition against interference prohibits an employer from discriminating or retaliating against an employee or prospective employee for having exercised or attempted to exercise FMLA rights. For example, if an employee on leave without pay would otherwise be entitled to full benefits (other than health benefits), the same benefits would be required to be provided to an employee on unpaid FMLA leave. By the same token, employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions; nor can FMLA leave be counted under no fault attendance policies. See § 825.215.

This section means that the FMLA prohibits an employer from refusing to hire an applicant who has exercised (actually used FMLA leave) or attempted to exercise his/her FMLA rights.  The interesting thing is that the prohibition in this situation applies to an “employer” as defined by the FMLA and not just the employer for whom the employee worked at the time of the exercise or attempt to exercise of the FMLA rights.

If you are in the Greensboro North Carolina area and need an FMLA attorney, please call our office at: 336-235-4004.  In the Knoxville Tennessee area, please call: 865-297-4344.