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Employee’s burden of proof in FMLA retaliation case

Elsewhere on this blog, I’ve discussed the protections the federal Family Medical Leave Act (FMLA) offers employees. The FMLA prohibits retaliation against an FMLA eligible employee who either asks to take FMLA or actually takes FMLA. An employee must do more than show that the employer used the FMLA protected leave was a negative factor in an adverse employment decision.  The employee must present evidence that but for her use of the FMLA, she would have not suffered a negative job action.

Here is a fact based example from a recent federal court decision in Massachusetts. The employee applied for a transfer to another position. She argued that the employer improperly used as a negative factor in reviewing her application the time off she took as FMLA protected sick leave. The Court ruled that the employee could prevail if she showed that she would have gotten the transfer but for her taking FMLA protected leave. The “but for” causation standard applies when an employer denies a job opportunity to an employee because of the employee’s attendance record, when the absences are FMLA related. Goodreau v. City of Newton.

Pamela A. Smith
Law Office of Pamela A. Smith
233 Needham Street, Suite 540
Newton, MA 02464


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