Employee ineligible for FMLA can nonetheless pursue retaliation declare, court docket says

Diving letter:

  • A nurse who has not qualified for the Family and Medical Leave Act (FMLA) leave may continue her retaliation claim against her former employer, as determined by a federal district court (Gomes v Steere House, No. 20-270 (DRI 2 November), 2020)).
  • The employee sued the Steere House care and rehabilitation center, claiming it fired her after contracting COVID-19 and applied for paid FMLA leave. The employer determined that she was not an candidate for the FMLA and dismissed her according to her complaint. She sued, claiming she was entitled to paid vacation that was established by the Families First Coronavirus Relief Act. However, the provision of this law for workers contracting COVID-19 is not bound by the FMLA, the court later stated. Only the provision granting paid time off for care has changed this law.
  • The employer asked the court to dismiss her FMLA retaliation suit, but denied it. The worker had demonstrated that she tried to exploit FMLA rights and claimed a close timeline to support the suggestion that her application for FMLA initiated her dismissal.

Dive Insight:

Gomes shows that even if an employer successfully fulfills an underlying claim, retaliation can result in legal problems. Most labor laws in the country prohibit retaliation against workers engaged in sheltered activities, but retaliatory complaints are a common occurrence, according to the U.S. Equal Employment Opportunity Commission.

Other courts have come to similar conclusions. The 6th Circle passed a jury finding that a police officer had been subject to retaliation for his bias complaint but was not self-biased. Similarly, Circuit 2 allowed an employee’s retaliatory lawsuit to continue despite unsuccessful allegations of sexual harassment and racial discrimination. The court said that while her allegations were undeniable because they were minor, her allegation that she was forced to work through her lunch break after complaining was sufficient to uphold her retaliatory lawsuit.

The Gomes court expressly pointed out the “temporal proximity” between the plaintiff’s request for leave and her notice of termination. Since timing alone can be a prima facie case of retaliation, employers should be careful not to use red flags for retaliation – such as retaliation. Such as increased oversight, highlighting alleged performance issues, or increased work standards or expectations – after an employee engages in protected activities, experts previously said HR Dive.

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