Atlanta Employment Attorneys Blog
A lumber mill worker’s recent success in federal court represents a noteworthy outcome for multiple reasons. For the worker, it recognizes that an employer may be liable for retaliation under the Family and Medical Leave Act, both by terminating the worker and by subsequently refusing to rehire them. On the employer side, it demonstrates just how crucial it is to document carefully why your business makes the decisions it does regarding hiring, firing, and rehiring, and how this is even more critical if your business is dealing with a worker who has engaged in statutorily protected activities in the past. Whether you are a worker or an employer, an experienced Atlanta FMLA retaliation lawyer can provide essential answers to questions you have about this issue.
The worker, E.B., worked for two years, from 2015 to 2017. According to the employee’s lawsuit, he “worked in every department … without complaint or discipline.” The employer allegedly fired him in December 2017 after he requested and took FMLA leave to care for his disabled wife.
E.B. sued for FMLA retaliation in 2019. K.B., a coworker at the mill, submitted a sworn statement in support of E.B. as part of that lawsuit.
Later, the employer filed for bankruptcy, and a new company acquired the employer’s mill and assets, subsequently operating the mill under its own name. Following that transition, the new company rehired many of the workers who had previously worked at the mill. Allegedly, the mill rehired at least 13 individuals who had worked under the previous ownership, several of whom had less experience than E.B. possessed. The only two people that E.B. knew of who were not rehired were himself and K.B.
In July 2024, the mill worker launched a new FMLA retaliation case. As the court noted in deciding the new employer’s motion to dismiss, the FMLA’s retaliation provision expressly prohibits an employer from firing “or in any other manner discriminat[ing] against any individual because such individual … has filed any charge, or has instituted or caused to be instituted any proceeding, under or related to this” statute.
As with federal anti-discrimination and other retaliation laws, FMLA retaliation claims require the worker to establish that the worker’s engaging in a protected activity (retaliation) or membership in a protected group (discrimination) caused the employer to take an adverse action.
Establishing Causation at the Pleading Stage
The court also specified that, in FMLA retaliation cases, the law uses a “but-for” standard of causation. As the name implies, this standard requires the worker who alleges retaliation to demonstrate that, but for his engaging in a protected activity, the employer would not have taken punitive action against him.
E.B. had allegations that met this legal standard for purposes of thwarting a motion to dismiss. His complaint described a tenure during which he worked in each of the mill’s departments, all without any adverse incidents. He also explained how the new employer allegedly rehired many of the same workers who had staffed the mill under the previous ownership (including workers with less experience than E.B. had).
He further alleged that the new company rehired many members of upper management who had previously managed the plant, including one who personally invited two former workers to return to work at the mill. When he asked why his numerous applications all met without success, the employer simply gave him vague, non-responsive replies like “keep trying back.” Based on those alleged facts, the court concluded that “it is reasonable to infer… that a plant manager would know about lawsuits filed by a former employee and would have influence in hiring decisions. Moreover, given [E.B.’s] allegations that [the new company] passed over two former… employees who participated in protected activities, and instead hired less-qualified employees, it is plausible that [the new company’s] decision to not hire [E.B.] was due to his alleged protected activities.”
If you have questions about the FMLA, particularly in retaliation to business practices that may or may not constitute illegal retaliation, reach out to the knowledgeable Atlanta FMLA retaliation attorneys at Parks, Chesin & Walbert. Our team is highly experienced in FMLA matters and can provide the sound advice you need. Contact us through this website or at 404-873-8048 to schedule a consultation today.