FMLA Retaliation Standard Relaxed

The Family Medical Leave Act (“FMLA”) is a federal law which allows eligible employees to take a leave of absence from work for several reasons such as when dealing with a serious health condition of the employee or their family.

FMLA Retaliation and Interference

On July 19, 2017, in Woods v. START Treatment & Recovery Centers, Inc., the highest federal court in New York decided a case relating to the FMLA and answered two important questions.

In the Woods case, the plaintiff was a substance abuse counselor at START. Woods suffers from severe anemia and other medical conditions. For these reasons, Woods requested medical leave on at least four occasions. START is a nonprofit that provides services to narcotic-addicted patients. In 2012, after working at START for approximately five years, Woods was fired twelve days after she returned to work from an FMLA protected leave. Start claims she was fired because of performance issues.  Woods, however, claims she was fired because she requested FMLA leave. After Woods was fired, she sued START for FMLA interference and retaliation. After she sued and sat for her deposition, she was asked several questions about a prior incident where she was accused of wrongdoing such as criminal conduct, lying, fabrication, and fraud. Woods decided not to answer these questions and instead, invoked her Fifth Amendment right against self-incrimination.

The FMLA prohibits an employer from interfering, restraining, or denying an employee’s right to exercise a leave of absence under the FMLA.  The FMLA also prohibits an employer from retaliating against an employee for exercising their rights under the FMLA. For example, an employer can’t fire an employee for taking FMLA leave.

In this case, the lower court applied a “but-for” causation standard in determining whether START did in fact retaliate against Woods for taking FMLA leave. In other words, Woods had to show that retaliation was the main reason why she was fired. The “but-for” standard is harder to prove than the “motivating factor” standard, which is another causation standard courts often use to determine whether the adverse employment action in an employment discrimination case was in fact illegal. The reason why the “motivating factor” standard is easier to prove is because the employee only needs to show that the adverse action, in this case Woods’ being fired, was motivated, at least in part, because of retaliation.

Another issue in the Woods case, was that the lower court gave the jury an “adverse inference” instruction. This “adverse inference” allowed the jury to infer, if they wanted to, that Woods’ refusal to answer certain questions at her deposition meant that she had basically answered a “yes” to the questions about previous wrongdoing that were asked and thus, they could use it against her when evaluating her credibility.

On July 19, 2017, the Second Circuit ruled that the lower court’s decision was incorrect and held that the “motivating factor” causation standard applies in FMLA retaliation cases and not the “but-for” standard.

Additionally, the Second Circuit ruled that Woods was unfairly prejudiced by allowing the jury to use adverse inferences against her because most of the questions that were asked at her deposition related to whether Woods had been accused of something. The Second Circuit held that accusations alone are not enough to impair someone’s credibility because “the innocent and guilty alike can be accused of wrongdoing.”

Long Island FMLA Lawyers

In sum, courts in New York will have to apply the “motivating factor” standard instead of the heightened “but-for” standard in FMLA retaliation claims. Courts will also have to be careful in their “adverse inference” instructions because they can be unnecessarily prejudicial to the plaintiff.

If you have questions about FMLA retaliation, contact the Long Island employment lawyers at Famighetti & Weinick, PLLC. Our phone number is 631-352-0050 and our website is

Today’s employment law blog was written by law student intern, Thalia Olaya.

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