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Allen M., Esq.
Allen M., Esq., Employment Lawyer
Category: Employment Law
Satisfied Customers: 19169
Experience:  Employment/Labor Law Litigation
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I would like to know my rights and how to proceed with my

Customer Question

Hello: I would like to know my rights and how to proceed with my current job. my boss has established a pattern this past year of discrimination, and now retaliation against my dealing with on-going medical issues. More specifically, while i was out on FMLA for two months, I return this month to hear from subordinates and colleagues that there was a 'restructure' while I was out, which affected my role. I ask him directly about whether or not this was true and he admitted yes, with a slew of excuses and details around the justification and how it was determined by him and two more senior staff than him. I contact my employer's HR and then have another meeting with boss who is now lying about having 'misspoke' and that my role is not actually changing. Having felt alienated, disrespected and retaliated against and being in a hostile environment, I cannot trust my boss and want to just leave at this point. I would like to know my rights and whether or not I have any weight to pursue legally, or if it will all be hear-say at this point?
Submitted: 9 months ago.
Category: Employment Law
Expert:  Allen M., Esq. replied 9 months ago.

Thank you for trusting your question to JA today. I am a licensed attorney with over a decade of law practice and over 20 years of experience in the legal field. I’m happy to be of assistance.

Hearsay isn't the issue here. You are allowed to testify to what a party opponent said, a common exception to the hearsay rule. So, that's not the concern.

The concern is that an employer is legally allowed to change their employee's jobs, even when that person has recently used FMLA. What is not allowed is the employer changing a person's role simply because they used FMLA (meaning the reason for the change was the FMLA use).

Furthermore, you stated that the change isn't actually taking place, which would mean that you couldn't even point to the change as an adverse action. Just talking about a change and not actually doing it doesn't rise to the level of discrimination or retaliation.

You also mentioned a hostile work environment, but didn't really mention any specifics about the treatment that you are referring to (the only example was this change in role that didn't ultimately happen). You may certainly have many other facts that support a hostile work environment claim, but you appear to have leaned very heavily (in this post) on the employer's statements about changing your role, which is not enough by itself to create any sort of claim.

If you can point to a number of areas of harassment and then add on top of that these statements about changing your role (and then their back-peddling after you called them on it), then it would be worth filing a Department of Labor FMLA investigation request.

Leaving the employer though, at this point, would end up limiting your claim and could extinguish it altogether.

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