Employees in South Carolina who request or use a medical leave of absence (whether intermittent leave or continuous leave) under the Family and Medical Leave Act (FMLA) often face retaliation for FMLA leave by their employer. Retaliation for FMLA leave can take several forms, but the most common forms are termination, suspension, or demotion. As a South Carolina FMLA lawyer, I see all types of retaliation on a regular basis. But how can an employee protect himself or herself against retaliation for FMLA leave? (For a description of the Family and Medical Leave Act and whether it applies to you, please read this article for more information here.)
What Constitutes Retaliation for FMLA Leave in South Carolina?
The FMLA prohibits retaliation against employees who engage in protected conduct or activity. Protected activity can include requesting or taking FMLA leave, but it could also include circumstances where the employee makes a complaint to management or HR about FMLA violations. If the employee engages in these types of actions, then the company is not allowed to retaliate against the employee, whether through discipline, suspension, or termination. Sometimes, the company will use the employee’s use of FMLA leave against the employee, such as by giving an employee points for missing work, even if the missed work is due to a documented use of FMLA leave. Or the company could reduce an employee’s scheduled hours just because the employee took protected leave.
Simply put, if the company treats the employee WORSE after the employee takes FMLA leave, that’s probably retaliation.
What Remedies Does an Employee Have for Unlawful Retaliation?
If you have been retaliated against for taking protected FMLA leave, then you have the right to file a lawsuit against the employer in state or federal court. In your lawsuit, you may seek several different types of remedies, including:
1. Reinstatement to your position and job
2. Back pay/lost wages from the time of termination until present day
3. Front pay for additional lost wages and benefits that you will lose in the future
4. Liquidated damages, which is amount of money equal to your back pay and front pay (essentially doubling your damages)
5. Attorney’s fees and costs
What is the Statute of Limitations for FMLA Retaliation Lawsuits in South Carolina?
You have two years to file a lawsuit under the FMLA (three years if the violation was willful). And, unlike claims under Title VII of the Civil Rights Act, the Americans with Disabilities Act, or the Age Discrimination in Employment Act–all of which require the employee to file a separate charge of discrimination with the Equal Employment Opportunity Commission (EEOC) first–an employee can file a lawsuit immediately under the FMLA in state or federal court.
Often though, FMLA claims can be tied to a claim for discrimination and/or retaliation under the ADA if the serious medical condition would also qualify as a “disability” as defined by the ADA. That means the employee could have one charge pending with the EEOC while the FMLA case takes off in federal court. (Read more here for how the ADA interacts with the FMLA.)
If you have been retaliated against for requesting or using FMLA leave, then the law provides protection and remedies for you. Speak with a South Carolina employment lawyer at (864) 233-4351 to discuss your rights and options in greater detail.
