Leave Retaliation

Retaliation for Requesting or Taking Medical Leave Is Illegal

New Jersey’s medical leave retaliation attorneys understand that absolutely no one should be worried about losing their job because they need to take medical leave. Thankfully, New Jersey employees cannot be retaliated against for requesting or taking legally protected medical leave. There are various laws that make it unlawful for New Jersey employers to retaliate against employees who take or request leave. The federal Family Medical Leave Act (FMLA), which provides certain employees with up to 12 weeks of unpaid time off to care for their own serious health condition or that of a family member, also protects employees from retaliation. Specifically, section 105 of the FMLA and the anti-retaliation provision of the New Jersey Family Leave Act (FLA) make it unlawful for employers to discriminate or retaliate against employees who request or take legally protected time off under the Act. Those laws also make clear that it is unlawful for employers to fire or in any other way discriminate against anyone who objects to or complains about, files a complaint concerning, participates in any investigation into, or testifies or will testify about FMLA violations. The New Jersey Law Against Discrimination (LAD) similarly protects employees from retaliation for requesting or taking leave because that law recognizes that a leave from work may be a reasonable accommodation of an employee’s serious illness or disability.

What Does Retaliation for Leave Look Like?

The most obvious form of FMLA or FLA retaliation is being fired while on leave because you took leave. But there are many other examples of illegal FMLA retaliation and/or unlawful FLA retaliation. For example, if you are demoted or if your pay or hours are cut after returning from leave that may also be a form of retaliation that violates either the FMLA or FLA. If you are denied promotions after returning from leave that you are eligible for, that can also be a type of unlawful retaliation. Assigning employees who went out on leave less prestigious or important work or assignments is also retaliatory if it happens because the person went out on leave. Even generally treating an employee more harshly after they return to work from leave can be a form of retaliation, known as a hostile work environment. Some women who return from maternity leave are then pigeon-holed into the mommy-track at work where they are denied better work assignments, paid less, and/or their opportunities for growth at work come to a screeching halt. That can be yet another example of not just FMLA or FLA retaliation but also gender discrimination and/or pregnancy discrimination in violation of the New Jersey Law Against Discrimination (LAD).

Is It Retaliation If I Am Laid-Off or Fired While on Leave?

This is one of the questions that we are asked most often and you’re probably not going to like the answer because it is not particularly straightforward. That is because the answer is that it depends. It is not necessarily unlawful for an employer to lay you off or fire you while you are out on FMLA leave, FLA leave or any other disability, medical, or pregnancy leave; however, it is unlawful for an employer to lay you off or fire you because you were on any of those types of legally protected leaves. Our leave laws require employers to return employees to their same or a substantially similar job upon the conclusion of their legally protected medical leaves but there are limitations to that requirement. So if you were going to be fired or laid-off anyway, our leave laws don’t provide you with any job protection that you would not have otherwise had. What does that mean? Well, in its simplest terms, it means that if you were going to be fired or laid-off even if you had not gone out on leave, you can still be fired or laid off while on leave or after returning from leave. That is because none of our leave laws provide you with greater rights to keeping your job or reinstatement than you would have had if you had never taken leave. Yet, you should not assume that you would have been fired even if you had not taken leave just because that is what you were told by your employer. Determining whether you would have been fired regardless of your medical leave can be a tricky issue that requires the knowledge and know-how of New Jersey’s medical leave retaliation attorneys at Lenzo & Reis.

What Should You Do If You Feel That You Are Being Retaliated Against for Taking FMLA Leave, FLA Leave or Leave as an Accommodation?

The most important thing you can do first if you think you are being retaliated against is call the FMLA lawyers or FLA attorneys at Lenzo & Reis to determine if you are being retaliated against. Once you do, our New Jersey leave lawyers can tell you whether you are being unlawfully retaliated against and, if you are, talk to you about your options to ending the retaliation, protecting or pursuing your legal rights, and/or obtaining compensation for the retaliation you suffered. Not everyone has as much experience or know-how as Christopher Lenzo and Claudia Reis in dealing with and fighting against Family Medical Leave Act retaliation, Family Leave Act retaliation or retaliation for taking leave as an accommodation. Our New Jersey medical leave attorneys and medical leave retaliation lawyers have recovered lost wages and emotional distress for retaliated against employees and can help you as well.