Most people think that they are protected under the Family Medical Leave Act (FMLA) any time their employer does anything that might be somewhat or just a wee bit adversarial or adverse to their position of employment after they have completed FMLA paperwork……this could not be more inaccurate.
In order to have a claim under the FMLA one must experience an adverse action from a monetary point of view. For instance, you get demoted, your salary gets reduced, you get fired, or you get moved to another location with less opportunity to make as much money. In some way shape or form your ability to earn money must have somehow been interrupted or stopped altogether. The terms and conditions of your employment must be financially altered in order for you to have a claim under FMLA.
This sounds like bad news, however it is not as bad as it sounds because of the latest amendments to the Americans With Disabilities Act, as amended (ADAAA). It is important to note that if you have an FMLA issue then in all likelihood you are also protected under the ADAAA. The ADAAA does not require a substantially adverse action with respect to the terms and conditions of your employment like the FMLA does. But this takes you back to the issue of having to deal with the EEOC and filing a charge of discrimination and waiting six months for the EEOC’s investigative rights to expire before you can pursue your claims in court. No such waiting period exists with the FMLA, however, it is the collective wisdom of the plaintiffs employment bar, as well as certain court opinions, which supports the idea that you should not bring a case piecemeal, but rather all the claims at once.
Accordingly, you would not bring an FMLA case without bringing the discrimination claims with it, so that would result in waiting for six months anyway. Long story short, if you’ve got an FMLA case, you’ve got an ADAAA case but you have to file with EEOC and wait six months before you can bring anything in court. This of course does not address the immediate needs for those who are being retaliated against for filing for FMLA or discriminated against because of a disability, perceived disability, or having a record of being disabled, but that’s the way most cases are anyway and there’s not a lawsuit in the land which won’t take at least 9 to 12 months regardless of the types of claims so it’s always best to try and resolve the issues or the dispute without litigation.
As a good friend of mine is fond of saying, that’s all for now.
