When an employee takes medical leave under the Family and Medical Leave Act (FMLA), most employers know they must hold the job open. But what happens after the employee returns? Can you change their schedule? Deny a raise? Criticize their performance? The answer isn't always simple—and getting it wrong can lead to one of the most damaging types of claims an employer can face: FMLA retaliation.
FMLA retaliation lawsuits are on the rise in New York, especially among small and mid-sized businesses that lack formal leave management protocols. These claims often emerge not from the leave itself, but from how the employer treats the employee afterward. Even unintentional actions—like subtle demotions, schedule changes, or icy treatment—can be spun into costly legal claims. This article walks through what FMLA retaliation looks like, how to spot the risk signs, and what New York employers can do to stay protected. If you're managing leaves in a post-COVID, short-staffed world, this guide is essential reading.
What Counts as FMLA Retaliation?
Employers often confuse FMLA interference and retaliation. Here's how to tell them apart:
FMLA Interference = Denying or obstructing the employee’s actual right to take leave
FMLA Retaliation = Punishing the employee because they took or requested FMLA leave
Both are illegal, but retaliation claims tend to involve more subjective facts—which makes them harder to defend and easier for plaintiffs to spin into jury sympathy.
Case Study: The Schedule Shuffle That Cost $80,000
A retail manager in Albany took six weeks of FMLA leave for post-surgical recovery. When she returned, her employer changed her schedule to late shifts, arguing it was "what worked best" during her absence. She lost supervisory responsibilities and saw her sales bonus disappear. She sued, arguing that these changes were punitive. The company claimed the shift changes were "operationally necessary." The court disagreed. Because her duties materially changed and there was no documentation showing a broader reorganization, the jury found it retaliatory. She was awarded $80,000 in back pay and damages.
🚩 Audit Red Flag: If the only person affected by a "reorganization" is the person who just returned from leave, you may have a retaliation problem.
How to Prevent Retaliation Claims: Use the LEAVE Framework
Build a defensible process for managing employees returning from FMLA leave with the LEAVE framework:
L – Log All Changes: Document any role, schedule, or compensation changes—and the business reasons behind them. Do this before the employee returns if possible.
E – Evaluate for Consistency: Would you have made the same changes to someone else in the same role? Are others being treated similarly?
A – Avoid Timing Traps: Don’t implement major changes immediately after return. A cooling-off period (1–3 months) can help separate legitimate business shifts from perceived retaliation.
V – Verify With HR or Legal: Run planned changes by HR or employment counsel. A second set of eyes can spot unintended risks.
E – Engage With Empathy: Make sure managers check in, express support, and ease the employee back in. Coldness and exclusion are often what trigger claims—not official write-ups.
💡 Pro Tip: Treat return-from-leave transitions as high-risk handoffs. Train managers to manage them as delicately as new hire onboarding.
Final Thoughts: Your Culture Is on Trial
[Editorial Image Prompt: Illustration of a courthouse labeled "Workplace Culture" with HR professionals standing in front holding training manuals and empathy signs. Balanced and editorial tone, cartoon flat style.]
Retaliation claims are about more than legal checkboxes—they’re about how your workplace feels to employees returning from leave. If someone feels punished, devalued, or sidelined after taking protected leave, the groundwork for litigation is already laid. But the good news is this: most retaliation claims are preventable. With strong documentation, consistent treatment, and proactive communication, you can support both your returning employees and your legal defense. Your policies are only as good as your managers’ actions. Train them, audit them, and lead by example.
Keep fighting the good fight.
