A Possible Hole in Retaliation Law?

According to a recent federal district court decision an employer may be able to get away with potentially illegal retaliatory behavior by creating separation between the various departments that make employment decisions.


Our Family Medical Leave Act attorneys believe that this could create a problem for employees who file claims under the act, and unfortunately, it could have broader implications as well.

This decision, McElroy v. Sands Casino, was decided in the U.S. District Court of Pennsylvania.

Given that this decision was made in federal court and involves a much-relied-upon federal law, the implications are likely to be widespread.

The biggest danger with the recent decision is that it may open up a loop hole large enough for employers to exploit and undermine the protections against retaliation in federal law.

In the McElroy case, the employee had completed a request for the Family Medical Leave Act and submitted it to his company’s human resources department.

The individual handling the claim immediately sent the request to a third-party benefits administrator, who handles FMLA claims for the employer.

The human resource employee claims that she did not tell anyone at the company about the claim, which was sent to the third party benefits administrator. However, two months later, the claimant was fired for allegedly harassing a co-worker.

The company argued that the human resources employee responsible for handling the claim was not involved in the decision to terminate the employee.

The employee argued he had been retaliated against for his FMLA claim. However, the federal disagreed.

The court ruled that the employer had two entirely separate departments involved and neither knew what the other was doing with regard to this employee. The court reasoned that none of the individuals involved in the termination were aware of the FMLA claim, so the termination could not be in retaliation for the submission.

The court may have made the right call in this case. The bigger problem with this line of reasoning is that it may motivate employers to create institutional separation between different departments and encourage informal communication to allow retaliation.

Such information might potentially be revealed through other sources, such as a co-worker or through statements made via social media.

Retaliation for FMLA requests is not a new thing. There are many other potential grounds for retaliation claims as well. Employees who experience adverse employment action as a result of complaints of unsafe work conditions or sexual harassment may have legitimate retaliation claims as well.

Los Angeles employment lawsuits can be filed with assistance from the Nassiri Law Group, practicing in Los Angeles, Riverside, and Orange County. Call 949.375.4734.

More Blog Entries:

$43 Million recovered for Sexually Harassed Workers, January 7, 2014, Los Angeles Employment Lawyer Blog

California Man Files Disability and Age Discrimination Suit, January 5, 2014, Los Angeles Employment Lawyer Blog

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