The Family and Medical Leave Act guarantees eligible employees the right to take unpaid leave without losing their jobs. But many employers punish workers who use this right—through termination, demotion, or other adverse actions. FMLA retaliation is illegal, and employees can sue to recover damages. Understanding your rights helps you recognize and respond to unlawful retaliation.

What Is FMLA Retaliation?

FMLA retaliation occurs when employers take adverse action against employees for requesting or taking FMLA leave. Employers cannot punish, discourage, or interfere with employees' FMLA rights. Both direct retaliation and more subtle interference violate the law.

Retaliation claims are distinct from FMLA interference claims, though they often occur together. Interference involves denying leave or failing to restore employees to their positions. Retaliation involves punishment for exercising FMLA rights.

Common Forms of Retaliation

Retaliation takes many forms, including termination during or shortly after FMLA leave, not being restored to the same or equivalent position, demotions or reduced responsibilities, negative performance reviews coinciding with leave, reduced hours or schedule changes, exclusion from meetings, projects, or advancement opportunities, and hostile treatment making continued employment difficult.

Timing is often telling—adverse actions shortly after FMLA leave requests or returns are suspicious.

Proving Retaliation

Retaliation claims require showing you engaged in protected activity (requesting or taking FMLA leave), you suffered an adverse employment action, and there's a causal connection between the two.

Direct evidence of retaliation—statements showing FMLA leave motivated the adverse action—is powerful but rare. Supervisors don't usually say "I'm firing you because you took leave."

Circumstantial evidence typically proves retaliation through timing (adverse action shortly after leave), inconsistent explanations for the action, differential treatment (others weren't treated similarly), deviation from normal procedures, and evidence the stated reason is pretextual.

The McDonnell Douglas Framework

Many courts use a burden-shifting framework. First, you establish a prima facie case of retaliation. Then the employer must articulate a legitimate reason for the action. Finally, you must show that reason is pretext—a cover story for retaliation.

Employers almost always offer some explanation—poor performance, restructuring, attendance issues. Your task is showing that explanation doesn't hold up.

Pretext Evidence

Evidence of pretext includes the stated reason being factually false, similar issues not triggering discipline for others, the reason emerging only after the lawsuit, timing inconsistent with the employer's story, and contradictions between different explanations given.

Performance reviews that were positive until you took leave are strong pretext evidence. Suddenly discovering performance problems right after FMLA leave suggests the leave—not performance—motivated action.

Protected Activity

Protected activity includes requesting FMLA leave (even if denied), actually taking FMLA leave, complaining about FMLA violations, and opposing unlawful FMLA practices. You don't have to use the words "FMLA"—requests for leave for qualifying reasons are protected even without citing the statute.

Damages Available

FMLA retaliation damages include lost wages and benefits, reinstatement or front pay if reinstatement isn't feasible, liquidated damages equal to lost wages (essentially doubling recovery), and attorney's fees and costs.

Liquidated damages are available unless the employer proves it acted in good faith. This doubling makes FMLA claims economically significant even when lost wages are modest.

Filing Deadlines

FMLA lawsuits must be filed within two years of the violation, or three years for willful violations. There's no requirement to file with a government agency first—you can go directly to court. However, some employees also file complaints with the Department of Labor.

Protecting Yourself

Document everything related to your leave and any changes in treatment. Keep copies of FMLA paperwork, performance reviews, emails discussing your leave, and notes about conversations with supervisors. If you're treated differently after leave, record specific examples.

Getting Legal Help

Employment attorneys experienced in FMLA claims can evaluate your situation and determine whether you have a viable case. Many take FMLA cases on contingency, collecting fees only if you win or settle. Given the complexity of proving retaliation, professional representation significantly improves outcomes.