Its Dollars and “Sense” for FMLA Retaliation Claim

September 16, 2008

A store known for keeping costs around a dollar was hit hard with an FMLA verdict for retaliation. In the end, Dollar General’s wrongful employment termination cost $73,942.68 – more than just a dollar for this “dollar” convenience store.

In 2001, an employee began working for Dollar General. In early May 2004, the employee completed paperwork for FMLA leave. Shortly after that, the company began a disciplinary process against the employee alleging her involvement in an office argument. The employee took her FMLA leave in two intermittent periods before Dollar General fired her in late May. Testimony from the employee claimed her supervisor commented on her health problems as a reason for the termination, a typical sign of retaliation.

The ex-employee filed suit against Dollar General for a retaliation claim under FMLA. A retaliation claim is one in which an employee asserts that the employer discriminated against her because she engaged in activity protected by FMLA. To succeed in a retaliation claim, this ex-employee had to demonstrate that Dollar General undertook an adverse employment action because she exercised an FMLA right.

Amazingly, Dollar General made a unique argument that FMLA does not prohibit retaliation against the exercise of FMLA leave. Not so amazingly, the court disagreed and confirmed that it is unlawful for any employer to discharge or in any other manner discriminate against an individual for using FMLA. Dollar General argued that the question then becomes whether taking six days off is enough to be considered FMLA.

Incredibly, after the store lost at the trial level, it appealed and made a similar argument: FMLA does not prohibit an employer from firing an employee because that employee took FMLA-guaranteed leave. The prohibition against retaliation applies only if there was opposition to taking FMLA. The appellate court agreed with the lower court, and upheld the trial verdict.

FMLA is a confusing area of administration for employers, but all should be clear on this point: all forms of retaliation because of FMLA are illegal. Supervisors should be wary of making negative comments about FMLA. Those words constitute prime evidence of retaliation. Proposed regulations have put FMLA even more in the forefront. As Dollar General learned, it takes just one disgruntled employee to put an employer in the courtroom, costing them dollars and cents.