FMLA Retaliation Attorney

The FMLA (29 U.S.C. § 2615) prohibits employers from interfering with, restraining, or denying the exercise of FMLA rights, and from retaliating against employees who take FMLA leave. Employees are entitled to be restored to the same or an equivalent position upon return. Using FMLA leave cannot be used as a negative factor in employment decisions.

California's CFRA provides 12 weeks of leave for employers with 5+ employees (FMLA requires 50+). California also provides Pregnancy Disability Leave of up to 4 months, separate from CFRA. New York provides Paid Family Leave (PFL) of up to 12 weeks for bonding, caregiving, and military family needs. Both states prohibit retaliation for using these leave programs.

An employer can terminate you during FMLA leave only for legitimate reasons completely unrelated to your leave — such as a previously planned layoff or documented misconduct that occurred before leave. The timing of a termination during leave creates a strong inference of retaliation, and the employer bears a heavy burden to prove the decision was not leave-related.

If your position was eliminated while you were on FMLA/CFRA leave, your employer must prove the elimination was part of a legitimate restructuring that would have occurred regardless of your leave. If similarly situated employees who did not take leave retained their positions, this is strong evidence of retaliation. You are entitled to reinstatement to an equivalent position.