The interference claim arises when the employer prevents or impedes the employee's ability to exercise rights under FMLA. Retaliation claims "involve an employee actually exercising her rights or opposing perceived unlawful conduct under the FMLA and then being subjected to some adverse employment action." The Court of Appeals holds that retaliation claims fall under 29 U.S.C. § 2615(a)(1), which provides: "It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter." (A related provision, § 2615(a)(2), provides: "It shall be unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter").

START conceded that the leave due to Woods’ hospitalization was protected under the FMLA, yet it fired her a few weeks later due to her poor performance. Woods then sued START, alleging interference and retaliation under the FMLA.The district court concluded that FMLA retaliation claims arise under 29 U.S.C. § 2615(a)(2). In analyzing that provision, it concluded that Woods was required to demonstrate that her FMLA leave was the “but for” cause of her termination – and not a “motivating” factor in the decision, as Woods argued.

That is, Dollar General asserts that the FMLA does not bar an employer from firing an employee because that employee took FMLA leave. Dollar General instead contends that the relevant statutory text pertains only to situations in which an employee has 'oppos[ed] any practice made unlawful' by the FMLA. 29 U.S.C. § 2615(a)(2)."In full, § 2615 provides:"(a) Interference with rights"(1) Exercise of rights"It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter."(2) Discrimination"It shall be unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter.

ays in December 2017 and one day in January 2018. For instance, on a couple of “calls,” which were recorded by the employer’s call-in messaging, he stated he would be absent or tardy because: “I’m having a flare up. I don’t feel good at all.” On another call-in, he stated he would be tardy because he had “been sick for the last few days.”In none of the calls was he asked if these absences were related to his intermittent FMLA leave or underlying qualifying condition. Although Render claims he mentioned the FMLA in each call, there was no recording or notation that he had done so.All four of these absences and tardies were classified by the employer as unexcused. These infractions, in combination with similar attendance infractions noted prior to his FMLA request, were sufficient to terminate employment under the attendance policy.Render sued FCA, claiming his former employer violated both theories of recovery under the FMLA: (1) the “entitlement’” or “interference” theory arising from 29 U.S.C. § 2615(a)(1); and (2) the “retaliation” or “discrimination” theory arising from 29 U.S.C. § 2615(a)(2).Render claimed FCA interfered with his FMLA rights by failing to classify these four absences/tardies appropriately as FMLA leave.” Examples of unlawful interference include “refusing to authorize FMLA leave” when the employee is eligible and counting FMLA leave under no-fault attendance policies. 29 C.F.R. § 825.220(b)–(c). He separately claimed that his former employer discriminated against him in violation of the FMLA by terminating his employment for attendance policy violations which counted these four absences/tardies as infractions.A federal district court in Michigan ruled in favor of the employer on both of these claims. Specifically, the court said, Render’s FMLA interference claim failed because he had not given sufficient notice to his employer before these absences and tardies. And, because he had not properly requested FMLA leave on these four occasions, his retaliation claim failed

The majority holds that the Department of Labor (DOL) FMLA retaliation regulation, 29 C.F.R. § 825.220(c), was a valid regulatory interpretation of the statute and thus entitled to Chevron deference. The FMLA itself provides under 29 U.S.C. § 2615(a)(1) that it is "unlawful for any employer to interfere with . . . the exercise of . . . any right provided" by the act.The DOL regulation, interpreting this section, eschews a but-for causation test: "[U]nder the regulation, an employee who claims retaliation and seeks to proceed under a mixed-motive approach must show that his or her use of FMLA leave was 'a negative factor' in the employer's adverse employment action."This statutory language, according to the majority, leaves a gap that the DOL could fill:"[B]ecause the term 'interfere with' is susceptible to multiple interpretations, and the statutory language does not directly address whether retaliation is among the actions an employer is prohibited from taking under the FMLA, Congress has not spoken on the 'precise question' before us ....

See 29 U.S.C. §2612(a)(1)(D). Furthermore, for violations of the FMLA, the law provides employees with two theories of recovery: interference and retaliation (based on 29 U.S.C. §2615(a)(1) and §2615(a)(2), respectively). First, the appeals court determined that, of the elements required to state a prima facie claim under both theories of recovery, only the last two prongs of each were at issue: for the interference claim, “[whether] the defendant denied [her] FMLA benefits or interfered with FMLA rights to which [s]he was entitled,” and for the retaliation claim, “[whether] there was a causal connection between the protected FMLA activity and the adverse employment action.”

One, from the Second Circuit, tackles an unreasonably low $204 fee for a sucessful trial on a claim of FMLA interference. The other, from the Fifth Circuit, reverses the award of Eastern District of Texas attorneys' rates in a Title VII case to a trial team from Oakland, California, where "an avalanche of unrebutted evidence" establishes that no additional local lawyers could or would have taken the case.Millea v. Metro-North R.R. Co., No. 10-409 (2d Cir. Aug. 8, 2011): The plaintiff in this case won a split verdict before a jury, prevailing on an FMLA interference claim (29 U.S.C. § 2615(a)(1)) but losing FMLA retaliation (29 U.S.C. § 2615(a)(2)) and a state tort claim. "The jury returned a verdict in favor of Millea on his interference claim, awarding him $612.50 in lost wages and other damages.

So in this ghastly FMLA decision, the plaintiff wins a jury verdict on liability but takes nothing in relief (not even attorney's fees or costs), in part because his lawyer failed to request nominal damages.Franzen v. Ellis Corp., No. 07-2009 (7th Cir. Sept. 10, 2008): The plaintiff charged Ellis Corp. with interfering with his right to take medical leave under the FMLA, 29 U.S.C. § 2615(a)(1), and discriminating against him for taking leave in violation of 29 U.S.C. § 2615(a)(2). The district court bifurcated his case, trying liability before a jury but reserving damages for a bench trial.

215.We agree with your conclusion that the situation you describe is different from the one in our opinion letter of November 5, 1993 (FMLA-15), in which the Wage and Hour Administrator stated that “[w]e would construe an employer’s attempt to require an FMLA-eligible employee to vacate the employer-provided lodging during the term of an FMLA leave period as an attempt to interfere with or restrain an employee’s attempt to exercise rights under the FMLA” in violation of the Act at 29 U.S.C. § 2615 and the regulations at 29 C.F.R. § 825.220.

of Walgreens on the FMLA retaliation claim. Lapham’s appeal followed.The DecisionOn appeal, Lapham argued that within the McDonnell Douglas framework applicable to her FMLA retaliation claim, she met her initial burden to establish a prima facie case of retaliation and subsequent burden to rebut Walgreens’ supposed nondiscriminatory justifications for her termination because both require merely a “motivating-factor” showing of causation, rather than a “but-for” showing. In other words, Lapham argued that to show causation, she merely had to show her requests for FMLA leave contributed to Walgreens’ decision to terminate her, and that she had done so successfully.The Eleventh Circuit disagreed. First, the court looked to the text of the FMLA, and found that it contained “because of” language, or equivalent language: “It shall be unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter.” 29 U.S.C. § 2615(a)(2) (emphasis added). Next, the court looked to the Supreme Court’s decision in University of Texas Southwestern v. Nassar, 570 U.S. 338 (2013), for guidance on how to interpret this language. While Nassar concerned Title VII, the court found the FMLA to be sufficiently similar to Title VII for Nassar to be especially instructive. Both statutes use “because of” language or equivalent language, and were enacted against the historic, default “but-for” causation standard. The Eleventh Circuit determined that because the Supreme Court held that the “but-for standard applied to Title VII, the same standard should be applicable to the FMLA.After establishing “but-for” causation as the correct standard for FMLA retaliation claims, the court elaborated on what it entails, explaining that it “is established whenever a particular outcome would not have happened ‘but for’ the purported cause.” Thus, it directs the court to change one factor at a time and see if the outcome changes. “If it does, the