FMLA and Leave Retaliation

You took leave you were legally entitled to — for your own health, or to care for family. If your employer punished you for it, or your job wasn’t there when you came back, that’s illegal.

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What is FMLA retaliation?

FMLA retaliation is when an employer punishes you for taking, requesting, or returning from leave protected under the Family and Medical Leave Act. The FMLA entitles eligible employees to up to 12 weeks of unpaid leave for a serious health condition — their own or a family member’s — and guarantees the same or an equivalent job on return.

The trouble usually starts before you even leave — and it doesn’t always end when you come back.

How FMLA and leave retaliation shows up at work

  • You’re pressured not to take the leave you’re entitled to

  • Your request is denied or dragged out

  • You’re written up for absences that should have been protected

  • Your job is filled, eliminated, or downgraded while you’re out

  • You come back to a worse role, worse hours, or worse pay

  • Your performance reviews turn negative after you return

  • You’re excluded, sidelined, or treated as unreliable

  • You’re fired shortly after taking or requesting leave

Federal and state protections

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Your leave is protected — and so is your job.

Federal

The Family and Medical Leave Act (FMLA) entitles eligible employees to up to 12 weeks of unpaid leave for a serious health condition, to care for a family member with one, or for the birth or adoption of a child. Leave can be taken all at once or intermittently. On return, the employer must restore you to the same or a substantially equivalent position, with the same pay and benefits. Both retaliating against you for taking leave and interfering with your right to take it are illegal.

Minnesota

Minnesota law provides additional leave protections beyond the FMLA, and Minnesota’s paid leave program gives many workers paid time off for their own serious health conditions or to care for family. Retaliating against a worker for using protected leave is unlawful.

Illinois

Illinois provides leave protections alongside the FMLA, including under the Victims’ Economic Security and Safety Act and other statutes. Retaliation for taking protected leave is prohibited.

Not sure which law applies to your situation? That’s what we figure out with you.

Two claims, not one

FMLA cases often involve two distinct violations, and it’s worth knowing the difference:

  • Interference

    Your employer got in the way of leave you were entitled to — denying it, discouraging it, miscounting it, or failing to restore your job when you returned. You don’t have to prove they were out to get you. You just have to show they denied you something the law guaranteed.

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  • Retaliation

    Your employer punished you because you took or requested leave — a demotion, a bad review, a termination. Here, the motive matters, and timing is usually the strongest evidence.

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A single situation frequently involves both. We look at both.

FMLA damages work differently from most employment claims.

  • Back pay for wages you lost
  • Front pay for future wages
  • Reinstatement to your job (if that’s what you want)
  • Liquidated damages — if your employer acted in bad faith, the court can award an amount equal to your other damages, effectively doubling them
  • Attorney’s fees and costs

Under the FMLA, compensation for emotional distress is generally not available — unlike discrimination or harassment claims. But the liquidated damages provision can substantially increase what you recover when an employer acted in bad faith. If your situation also involves discrimination or another claim, emotional distress damages may be available through that route, and we look for it.

Every case is different. What you can recover depends on the facts, the law, and the employer’s conduct.

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*Prior results do not guarantee a similar outcome.

How we handle FMLA and leave retaliation cases

Every case starts with a free call. We listen first. If you have a case, we tell you what it looks like — what’s likely to happen, how long it might take, what’s realistic. If you don’t have a case, we tell you that too and try to point you toward someone who can help.

On contingency, you pay nothing unless we win.

Attorneys who handle these cases

Meet the full team
Shawn Wanta, Founding Partner at Wanta Thome

Shawn Wanta

Founding Partner

Recognized among the nation’s Top 100 Civil Plaintiff and Top 10 Wage and Hour attorneys, a determined litigator fighting for workers in class and collective actions.

Admitted in MN · IL

Joni Thome, Founding Partner at Wanta Thome

Joni Thome

Founding Partner

Drawing on 25 years of representing professionals and managers, a steady advocate for employees facing discrimination, harassment, and retaliation in the workplace.

Admitted in MN

Suzanne Heywood, Attorney at Wanta Thome

Suzanne Heywood

Attorney

Driven by her own encounters with corporate unfairness, a tenacious champion focused on protecting the rights, livelihoods, and futures of hardworking professionals.

Admitted in IN · IL · MI

Luke Molvarec, Attorney at Wanta Thome

Luke Molvarec

Attorney

Forged by his background as a Marine, an unwavering defender fighting to level the playing field and secure meaningful financial recovery for unfairly treated workers.

Admitted in IL

Common questions about FMLA and leave retaliation

  • Am I eligible for FMLA leave?

    Generally, you need to have worked for a covered employer for at least 12 months, put in at least 1,250 hours in the past year, and work at a location with 50 or more employees nearby. If you’re not eligible federally, Minnesota or Illinois law may still protect you — worth checking.

  • Does my job have to be waiting when I get back?

    Yes. The FMLA requires your employer to restore you to the same job or a substantially equivalent one — same pay, same benefits, same responsibilities and status. Coming back to a demotion, a pay cut, or a worse role can be a violation.

  • Can I be fired while I’m on FMLA leave?

    Not because you’re on leave. You can be laid off for reasons unrelated to your leave — if your position would have been eliminated regardless. But if the leave is why you were let go, or if the timing is suspicious, that’s worth examining closely.

  • What if my employer discouraged me from taking leave?

    That can be interference, which is a violation on its own. Pressuring you not to take leave, making you feel it will cost you, or delaying your request can all interfere with a right the law guarantees you.

  • Can I get emotional distress damages under the FMLA?

    Generally, no — that’s a real difference between FMLA claims and discrimination claims. But if your employer acted in bad faith, liquidated damages can double your recovery. And if there’s an overlapping claim, like disability discrimination, emotional distress damages may be available through that.

See all retaliation FAQs

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Common questions

How long do I have to file an FMLA claim?

Generally two years from the violation, or three if the violation was willful. Because overlapping claims — like disability or pregnancy discrimination — often carry much shorter deadlines, it’s best not to wait on the FMLA clock alone.

What counts as a “serious health condition”?

Broadly, a condition requiring inpatient care or continuing treatment by a healthcare provider. It covers chronic conditions, pregnancy complications, serious injuries, and mental health conditions. It’s more inclusive than many workers assume.

Can I take FMLA leave a few days at a time?

Yes. Intermittent leave is allowed for many conditions — chronic illness, ongoing treatment, flare-ups. Employers sometimes push back on this, but it’s a right the FMLA protects, and interfering with it can be a violation.

What if my employer says I wasn’t eligible?

That’s worth checking rather than accepting. Eligibility rules have specifics, and employers sometimes get them wrong — or claim you’re ineligible when you aren’t. Even if the FMLA doesn’t cover you, Minnesota or Illinois leave laws might.

How much does it cost to hire an FMLA lawyer?

For most cases, nothing upfront. We work on contingency — you pay no fees unless we recover money for you. The first call to find out whether you have a case is always free.