El Paso Attorney defending fMLA discrimination or retaliation
“It is the purpose of this Act–
to balance the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity,
to entitle employees to take reasonable leave for medical reasons, for the birth or adoption of a child, and for the care of a child, spouse, or parent who has a serious health condition,
to accomplish [these] purposes . . . in a manner that accomodates the legitimate interests of employers . . . .”
–Purpose of the Family Medical Leave Act of 1993, 29 U.S.C. Section 2601(b).
The Family Medical Leave Act (“FMLA“) generally provides that covered employers must provide eligible employees up to 12 weeks of unpaid leave per year for:
- the birth of a son or daughter and in order to care for such son or daughter
- the placement of a son or daughter with the employee for adoption or foster care
- care of a spouse, son, daughter, or parent due to a serious health condition
- a serious health condition that makes the employee unable to perform the functions of the position of such employee
Any qualifying exigency (as defined by the Department of Labor) arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation
In addition, under new provisions in the FMLA, an eligible employee who is the spouse, son, daughter, parent, or next of kin of a covered servicemember shall be entitled under certain circumstances to a total of 26 workweeks of leave during a twelve month period to care for the servicemember.
Moreover, the FMLA requires an employer upon return of the employee from leave, with some exceptions, to either
restore the employee to the position of employment held by the employee when leave began or restore the employee to an equivalent position with equivalent benefits, pay, and other terms and conditions
The FMLA makes it unlawful for an employer to interfere with an employee’s FMLA rights or to otherwise discriminate against an employee for the exercise of FMLA rights. Therefore, it is generally unlawful for an employer to terminate an employee for taking leave under the FMLA or to consider FMLA leave in any employment action. In addition, it is generally unlawful for an employer to discriminate against an employee for standing up for his or her FMLA rights.
To obtain leave under the FMLA, an employee must give notice to the employer of his/her desire to take leave. Generally, if an employee’s need for leave is foreseeable, as in the case of the birth of a child or planned medical treatment, an employee must give at least 30 days notice of the leave. If leave is needed for a scheduled medical treatment, the employee may need to both provide notice to the employer and make a reasonable effort not to disrupt the operations of the employer in scheduling the treatment. Even if leave is unforeseen, an employer may legally require an employee to report periodically on his/her condition and his/her intention to return to work.
Furthermore, under the FMLA, an employer may require an employee to provide certification from a health care provider as to the health condition which necessitates the leave.
To see the complete text of the FMLA, click here.
Who is Covered by the FMLA?
The FMLA does not cover all employees or all employers, as generally small employers and new employees are excluded under the FMLA. The FMLA defines eligible employees as those that have worked for an employer (from whom employee is seeking leave):
- for at least 12 months and
- for at least 1,250 hours of service
Eligible employees under the FMLA generally do not include employees that work for an employer who employs less than 50 employees within 75 miles of the employee’s worksite. In addition, an employer is only subject to the FMLA if it employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year.
To be sure that you are eligible or ineligble for the FMLA, you should contact an employment and FMLA attorney to discuss the particulars of your employment situation. Indeed, FMLA coverage issues have been the subject of substantial litigation and many decisions by the courts. The rules of coverage discussed above are general rules, and there are many exceptions and exemptions to these rules. For example, certain “highly compensated employees” are exempted from requirements of the FMLA under certain circumstances. Similarly, on occasion an employer may do something which makes an otherwise ineligible employee eligible under the FMLA.
Texas Maternity Leave
Texas does not provide a specific law generally providing for an employee’s protection for taking maternity leave. However, Texas employees, if eligible, are protected for taking maternity leave under the FMLA. In some rare circumstances, other Texas and federal laws may provide for pregnancy leave.
Examples of FMLA Violations in Texas
- An employee is terminated while taking leave due to a serious health condition because he is not at work when the employer wants him to be there.
- An employee is terminated upon her return to work following leave to take care of her daughter who is suffering from a serious health condition. The fact that the employee missed days of work is taken into account in her performance reviews, leading to her termination.
- An employee returns to work following leave for the birth of her child to find her employment duties sharply reduced and her compensation changed. The employer’s decision to change employee’s role and compensation was influenced by her decision to take leave under the FMLA.
- An employee is terminated when he complains that the company is violating certain provisions of the FMLA.
Employee Remedies for an Employer’s FMLA Violations
The FMLA provides employees whose FMLA rights have been violated with the right to sue to enforce those rights in state or federal court. In a cause of action to enforce FMLA rights, an employee may be able to recover:
- lost wages, salary, employment benefits, or other compensation because of the FMLA violation (back pay)
- where wages, salary, employment benefits, or other compensation has not been lost, actual monetary losses sustained by the employee as a result of the FMLA violation, such as the cost of providing care, up to a sum of 12 weeks of pay of the employee
- interest on the above amounts
- reinstatement or promotion
- lost wages, salary, benefits, or other compensation in the future because of the FMLA violation (front pay)
- attorney’s fees
- expert witness fees
- costs of court
In addition, unless an employer can prove that it violated the FMLA in good faith or had reasonable grounds for believing its act or omission was not a violation of the FMLA, an employee may be entitled to liquidated damages equal to the sum of (1) lost wages, salary, employment benefits, or other compensation and (2) interest on that amount.
What to Do if Your Employer Discriminates/Retaliates Against You for Your Exercise of FMLA Rights
Contact an attorney immediately, and preferably an attorney who routinely represents employees in employment litigation. If you are unable to contact an attorney, you may be able to seek help through the United States Department of Labor. To preserve your rights under the law for this type of discrimination, you should act quickly, as claims under the FMLA are subject to a statute of limitations. Lastly, take thorough notes regarding everything discriminatory that is said or done to you and keep all of your records related to your employment. These notes and records may prove invaluable in a later lawsuit.
Additional Resources for Learning About an Employee’s FMLA Rights
- The United States Department of Labor–Providing the text of the FMLA, a FMLA fact sheet, an eligibility advisor, and other important information.
If you feel you have been discriminated on the basis of pay and wish to speak to a Texas equal pay rights attorney at the Martinez & Martinez Law Firm, please submit a case review form or contact us at Martinez@martinezlawyers.com.
CAUTION: The information on this webpage and website does not constitute legal advice. The purpose of this information is to provide GENERAL information to the public and to raise awareness of Texas employment laws for Texas employees. DO NOT read anything here and make a decision affecting your legal rights, such as a decision not to pursue a lawsuit or to file a lawsuit, without first consulting a lawyer. ONLY your own individual attorney can provide you with legal advice and properly inform you of your rights and remedies under the law. This website does not guarantee the accuracy of any of the information provided within it. Finally, this information only applies to Texas employees, as employment laws differ greatly from state to state.
This is not legal advice.