In "Other Duties as Assigned," HR Dive's senior editor, Kate Tornone, weighs in on employment trends, compliance best practices and, of course, the situations that require you to go above and beyond your normal duties. Today: shifting the way you talk to your managers about FMLA leave.
I was listening to a webinar about the Family and Medical Leave Act (FMLA) the other day when the word “discrimination” caught my ear. It’s just not one you hear a lot when talking about that law.
After all, the FMLA isn’t generally considered a nondiscrimination law; in fact, it’s enforced by the U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD), putting it in the same bucket as the Fair Labor Standards Act, separate from the usual “nondiscrimination laws” we talk about.
So when Helen M. Applewhaite, branch chief, branch of FMLA and other acts at WHD said the words “FMLA” and “discriminate” in the same sentence during the Disability Management Employer Coalition's webinar, my ears perked up. It was during a broader discussion about notice requirements that she said, “of course, you cannot discriminate against employees taking FMLA leave.”
If you’re super cool and frequent employment law conferences like me, you know that speakers mostly talk about FMLA “interference” and “retaliation.” “FMLA” and “discriminate” just aren’t words that we often hear together. But you know what? It’s right there in the statute: “It shall be unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this title.”
And you know what word I can't find anywhere in the statute? “Retaliation.” That term actually doesn’t show up until you look at DOL’s implementing regulations, which say things like, “The Act's prohibition against interference prohibits an employer from discriminating or retaliating against an employee or prospective employee for having exercised or attempted to exercise FMLA rights.”
True, the statute only uses “discrimination” to refer to those opposing unlawful activity but DOL’s regs use it in discussing FMLA interference.
So, outside of the litigation context, why should you care? Applewhaite’s words made me wonder if a simple shift in language might just help with training your front-line managers who, according to the experts, are causing the bulk of employment law violations.
“Retaliation” carries such a heavy-handed connotation, at least to me. It brings to mind images of a manager reassigning a worker to a less-desirable night shift because she’s mad that his medical leave left the team in the lurch during their busy season. And your managers (hopefully) already know not to do such a thing. But still, employee claims persist.
“Discrimination,” on the other hand, makes me think about the more nuanced situations that arise: The manager who fails to recommend an employee for a promotion because, in the back of her mind, she feels he’s absent a lot. Maybe that kind of example starts to sound more realistic to your managers.
They’re both retaliation but the second example doesn’t seem quite as overtly cruel; it's a little more passive. But your managers already (again, hopefully) understand discrimination when it comes to protected classes. For example, they know that failing to promote someone because of their sex is illegal. Perhaps discussing FMLA “discrimination” in the same way could help convey that an employer can be held liable for adverse employment actions taken because an employee has exercised his or her FMLA rights. An action doesn't have to be an affirmative, immediate punishment — like reassignment to the night shift — to amount to FMLA retaliation.
When Applewhaite referenced discrimination, she was discussing call-out policies. If you have a call-out rule but it’s generally not being followed by employees (and your managers aren’t enforcing it), you can’t turn around and apply it to an FMLA leave-taker, she explained.
Could it be difficult to see how requiring an employee to comply with policies that have always been there can amount to retaliation? I think so. But maybe it's just a little bit easier to see how it's discrimination, how it holds employees to different standards based on whether or not they exercised a right. So if you’re concerned about your front-line managers creating FMLA retaliation clams (and you should be), it may be worth considering a slight shift in your training language.