The Law Office Of

Neal Jacobs

8118 Corporate Way, Suite 110, Mason Ohio 45040

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Employer Retaliation

employer retaliation cincinnati ohioSubjecting employees to retaliation for asserting their rights under federal and state laws is not only illegal but poisons the workplace setting. Retaliation occurs not only if an employee is terminated, but also if he or she is demoted or harassed for exercising their rights.

If your employer retaliates against you for seeking or obtaining leave under the Family and Medical Leave Act (the “FMLA”), you may have a legal claim. Similarly, an employer who retaliates against an employee who seeks a reasonable accommodation to perform his or her job may be subject to a lawsuit.  Other instances of retaliation include: (1) discharge of an employee for filing a workers’ compensation claim; (2) harassment of an employee as a result of raising concerns that an employer’s conduct violates federal or state laws; and (3) demotion or passing over an employee for promotion as a result of complaining about sexual harassment.

Retaliation for asserting rights under state and federal law is illegal. Proper representation by an experienced employment lawyer may entitle you to compensation and / or reinstatement to your job.  If you believe that you have been retaliated against for asserting your legal rights you should call the Law Office of Neal D. Jacobs.
 

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FMLA RETALIATION

Recently a client who had obtained leave under the Family and Medical Leave Act (“FMLA”) and had utilized his leave was discharged. The client believed he had been retaliated against for exercising his right to FMLA leave. The client worked for a parts manufacturer and had obtained intermittent (“as needed”) FMLA leave in early 2013 to assist his father who was diagnosed with Alzheimer’s Disease. The employee had only rarely not used the FMLA leave during most of the year; however, at the end 2013 he needed time to assist his father.

While the employer talked about the value of the FMLA, when the client’s use of FMLA leave reached a “high water mark” (61 hours over a 6 weeks week period) the employer subjected the client to a series of “write-ups” regarding the sufficiency of his production and the quality of his work. These complaints were subjective, and had not previously been raised.  When the client needed leave for an emergency he was discharged the following day--ostensibly for failing to provide written evidence of the medical necessity for his absence. The client believed that the reason for the termination was a pretext--an excuse to punish him for exercising his rights.

The client filed a complaint seeking damages for violation of the FMLA under a retaliation theory. To establish FMLA retaliation, an employee must show that (1) he was engaged in an activity protected by the FMLA; (2) the employer knew that he was exercising his rights under the FMLA; (3) that after learning of the employee's exercise of FMLA rights, the employer took an adverse employment action; and (4) there was a causal connection between the protected FMLA activity and the adverse employment action. The employer can thereafter assert that there was a good faith business justification for the termination. The employee must show that the reason was a pretext.

In this case, the matter was assigned to a Judge who ordered an early settlement conference. After 5 hours of shuttling between the parties, with the Judge evaluating the factual and legal basis of the claim, and evaluating damages, the parties settled the matter for 8 months of salary and payment of the client’s COBRA for that period. The settlement allowed the client time to seek a permanent health care solution, and to look for a new job without the pressure of having no income.

The moral of the story is that employers often “talk the talk” but don’t “walk the walk”. Retaliation for exercising your rights is unfortunately not that uncommon and an employee needs to be willing to respond aggressively to such illegal behavior..
  

 

Employment Lawyer

Litigating wrongful termination, employment discrimination, harassment, Family Medical Leave Act, and retaliation claims.

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