FMLA Retaliation Cases

FMLA retaliation cases are potent weapons that can flip the balance of power in favor of employees.   Employees can really stand up for themselves and recover good settlements.   This video explains why these cases are so powerful for employees and bad for employers.

You can also read a transcript of the video below:

Hi, I’m Robert Ottinger. I’m an employment lawyer with the Ottinger Firm and we represent executives and employees.

Now I’m here today with my dog Lake to talk about one of my favorite kinds of employment cases and they’re called FMLA retaliation cases and these cases are dynamite for employees and nightmares for employers. Now, what exactly is an FMLA retaliation case, you may be wondering?

Well, the FMLA, as you may know means Family Medical Leave Act. And this law’s there to give people the right to take a little bit of time off if they’re sick or if maybe one of their close relatives like your mom or dad or your spouse or your child is sick. It gives you the right to take some time off and deal with that.

Some companies though, they don’t want to be bothered. If they have an employee who’s sick themselves or has a sick relative and they need time off, they just fire the person. It happens a lot.

So that’s the core of FMLA retaliation. So, now why are these cases so great? Why are they one of my favorite kinds of cases? Well there’s a few reasons.

First of all, the law creates a presumption of guilt for a company that fires an employee while out on FMLA leave or within 90 days of returning from FMLA leave. Now that’s incredible. That means if you’re fired while you’re on leave or soon after you return from leave, the law assumes the company fired you because you were out on FMLA leave. That’s incredible. The burden shifts at that point back to the company and they have to sort of come up with a good reason to explain why they really fired you.

The second reason why they’re so strong, why they’re so great, is that unlike almost all other federal employment law cases out there, with an FMLA case you don’t have to file first with the Equal Employment Opportunity Commission. That’s a real hassle. It’s a, kind of a worthless, procedural hurdle that’s there for most all of their federal employment cases. But no so with the FMLA. You can file a lawsuit against your company immediately and this gives you a lot of power. You can actually pose a real threat to a company that fires you if you’re out for out on FMLA leave.

Now with these two things, the fact that there’s a presumption of guilt and the power to file a case immediately, it puts the ball in your court. Because if those things happen to you, if you’re fired while out on leave or soon after you return, your case is so simple. All you have to prove is that you were fired while out on leave or soon after you returned.

Once you prove those two things, and they’re not in dispute. There’s never a dispute about a person being on FMLA leave or not, or that they were fired. They’re uncontested. So right off the bat, the burden shifts to the company. Now they have to explain why they fired a person while they’re out sick or caring for sick relatives. And how does that make the company look? I mean why in the world would a company have to fire someone while their sick, or while their mom is sick, or while their dad is sick, or their child is sick? It’s a terrible thing for a company to do. And so they have to explain to a jury why they did this terrible thing. And they have to, they better have a really good reason for it. It better not be linked at all to your leave. Otherwise, they’re guilty.

And finally with the FMLA, if you prove that this happened, the companies are required to pay you two times what you lost. That’s statutory required double damages. If you get fired and you lose $50,000, the company has to give you $100,000 and they have to pay all your legal fees. So these cases are nightmares for employers.

So if this has happened to you, if you’ve been fired while you’re out on FMLA leave, or soon after you return, you might have a great case. And by the way, when you’re, if you go out on leave, you don’t have to ask for FMLA leave. You don’t have, no one’s required to say that. All you have to do is say, hey look. I’m sick or my mom’s sick. I want some time off. That’s it. You don’t have to even mention the words FMLA. So don’t be worried about that.

So anyway, if you want to know a little bit more about who’s protected by the FMLA we have other videos that explain that. But that’s it in a nutshell, those cases are dynamite, and because they’re so strong, most people who are in that situation can settle their cases fast without ever going to court, because most companies don’t want to deal with that. They’d rather pay up early, put it behind them, and hopefully learn a lesson and not fire the next person that goes on FMLA leave.

Until next time, I’m Robert Ottinger

Author Photo

Robert Ottinger, Esq.

Robert Ottinger is an employment attorney who focuses on representing executives and employees in employment disputes. Before starting his firm, Robert slugged it out in courtrooms trying cases for the government. Robert served as a Deputy Attorney General for the California Department of Justice in Los Angeles and then as Assistant Attorney General for the New York Attorney General’s Office in Manhattan.

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