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Riverside County Employment Lawyers > Blog > Employment Lawyer For Employees > Can An Employer Punish You For Taking FMLA Leave?

Can An Employer Punish You For Taking FMLA Leave?


The federal Family and Medical Leave Act (FMLA) and its state counterpart, the California Family Rights Act (CFRA) provide employees with the right to take a certain number of unpaid leave days under certain circumstances. This leave is “job protected,” meaning the employer cannot fire or discipline an employee who exercises their rights to take such leave. It also means the employee has a right to return to their prior job–or an equivalent position–after their leave is completed.

Airline Faces Lawsuit Over Attendance Policy

Some employers try to work around FMLA and CFRA by indirectly punishing employees who take protected leave. Many courts have held such practices are also unlawful. But that does not discourage employers from continuing to try.

Refuerzo v. Southwest Airlines provides a good illustration. In this case, the plaintiff worked as a flight attendant for the defendant’s airline. The defendant had an attendance policy that it enforced through a “points” system. In simple terms, an employee who received 12 points was subject to termination. But an employee who had no unexcused absences during a quarter would receive 2 points off their accumulated point total (until that total reached zero).

During the course of the plaintiff’s employment, the defendant amended its policy to state that an employee who took FMLA leave would not receive the 2-point deduction. Previously, the use of FMLA leave did not affect an employee’s eligibility for the reduction. The employee in this case took FMLA leave after the new policy was announced. He ended the year with 9.5 points, which would have been reduced to 7.5 points, had it not been for the new rule.

At the start of the next year, the plaintiff missed work due to a cold. The defendant’s policy required that an employee who needed to call-in sick must do so at least two hours before they were required to check-in for work. The defendant’s computer system recorded the plaintiff’s call one minute late. This added 2.5 points to the plaintiff’s point total, resulting in his termination.

The plaintiff sued the defendant, alleging that the failure to grant him a 2-point deduction violated FMLA and the CFRA. The defendant argued any such claims were preempted by its collective bargaining agreement (CBA) with the plaintiff’s union. Such CBA disputes fall under a specific federal statute called the Railway Labor Act (RLA).

The judge overseeing this case, however, said the RLA did not apply. The RLA only covers employee rights that are created by a CBA. The FMLA, in contrast, creates the right to take job-protected family and medical leave “without penalty.” The judge said the plaintiff could therefore proceed with his lawsuit and denied the defendant’s motion to dismiss the case.

Speak with a California Employment Attorney for Employees

Even when state and federal law clearly protects certain employee rights, there will always be employers who try to avert the laws. That is why it is important to work with an experienced California employment lawyer if you have reason to believe your employer is acting illegally. Contact the Law Office of Karen J. Sloat, APCtoday.



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