PROVING FMLA RETALIATION

Imagine that an employee asks for a week of annual leave in late August after using 3 weeks of FMLA in February to care for an ailing parent and the supervisor denies the leave.  The supervisor told her that she has already been gone far too long this year given her workload.  Has the supervisor retaliated against the employee for using FMLA? One of the issues a union or ER/LR rep must consider in answering that question is what the legal standard of proof is for retaliation cases.  Does the employee have to show that “but for” her use of FMLA the leave would have been approved or need she only show that her use of FMLA was viewed as a negative factor by the supervisor when s/he made the leave denial decision.  The good folks at OgletreeDeakins just posted an article providing an update on which of those two legal standards applies.  It is entitled, “Second Circuit Lowers Bar for Causation in FMLA Retaliation Claims.” While the courts are not unanimous on the answer to that question, their arguments are well-made and should consider when arguing for one or the other of these standards.