Adverse Employment Action & How The FMLA Works

There are many types of discrimination at work.  Retaliation tops list ahead of race, disability, sex, age to name a few of the most common grievances.   If you’re an employee being treated unfavourably by an employer, remember you’re not alone, and there are steps you can take to right the wrong.

In this blog post we look at The Family and Medical Leave Act (FMLA) and how it protects employees rights and when it’s called into action for adverse employment action.

What is An Adverse Job Action?

An adverse employment action refers to the employer’s action that potentially damages the employee’ job. Some of the pertinent examples of this action include loss of pay, demotion against their current position, or sudden termination despite the high performance of the employee. The actions with lesser impact like the poor evaluation of employees, or alterations in job responsibilities (that doesn’t necessarily translate to loss of pay) cannot be classified as adverse employment actions.

With regard to the FMLA retaliation claims, the legal definition of this action is any action that is likely to dissuade the employee from exercising their legal rights. It is not just a mere inconvenience or a simple shift in job responsibilities, instead, it leaves a damaging impact on the employees and their reputation.

Common Instances of Adverse Employment Action

While actions like firing or demoting can be deemed as adverse employment actions, there are other non-job-determinative actions that fall under this category. For instance, lateral transfers, negative references, the imposition of tedious and unrealistic work schedules can also be deemed as adverse employment actions. These actions, despite being non job-determinative fall under this category because they are severe enough from impeding the employee to exercise their FMLA complaint rights.

While it is not really possible to compile a complete list that includes every possible adverse employment action, in this section we will use some of the most common instances.

Placing Employees on Administrative Leave

This is one of the most common ways in which employers choose to punish’ their employees. There have been several instances of this action in the past, and the court has held the judgement that putting employers under administrative leave, is but, an adverse employment action.

Salary Cuts

Employers can choose to obliterate the rights of employees by imposing cuts in their basic salary. This instance usually occurs when the employee raises their voice against their prospective employer. In the famous Little v. Windermere Relocation, Inc., Ms. Little’s company imposed a 30% pay cut as a response to their allegation of abuse.

Lack of Promotions

When your employer shifts you from one department to the other, reduces your existing job responsibilities, gets your accounts transferred from your portfolio, and even downgrades your status of promotability – it directly qualifies as adverse employment action.

Negative References

If your employer fires you and offers negative job reference to your new employer or to your EEOC officer (when you file a claim) their action translates to negative job action.

Transfer of job responsibilities

When your employer transfers your job duties, and gives low performance ratings despite your consistently high-performance, their action constitutes as adverse job action.

Disqualification from Hiring

In the famous Ruggles vs. California Polytechnic State University case, a professor who complained about workplace discrimination was barred from hiring for a leading teaching position. The court found this act to be unlawful and it was therefore constituted as adverse employment action.  New York Employment Lawyers, Yuriy Moshes say you have to be attuned to workplace discrimination to recognize it in all its forms i.e. race, age, pregnancy, disability etc.

Extensive periods of suspension- If your employer suspends you without pay for several months, their action will be deemed as adverse employment action.

In addition to this, other common actions include:

• Denial of your transfer application.
• Sudden termination.
• Barring you to take promotional exams.
• Undue loss of pay.
• Low, undeserved ratings for your job performance.
• Decreased professional responsibilities.

How Does FMLA Protect You?

Under the FMLA, all qualifying employees are entitled to up to 12 weeks of unpaid, yet job-protected leaves every year. Employees do not have to use all the leaves at once, and they can be used as and when it is needed.

Bottom Line

If you think you’re a victim of adverse employment action, consult your lawyer. Attorneys will not only help you take legal action against your employer, but they will also help you exercise your rights under the FMLA regulations.