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Fired for Taking FMLA Texas: Retaliation Rights & How to File (2025)

If you’ve been fired, demoted, or treated worse after taking FMLA leave in Texas, you may have experienced illegal retaliation. The Family and Medical Leave Act protects not just your right to take leave, but also your right to return to work without facing adverse consequences.

Understanding the difference between FMLA interference and FMLA retaliation is critical to protecting your rights and pursuing legal remedies if your employer violates the law.

Two Types of FMLA Violations: Interference vs. Retaliation

FMLA violations fall into two categories, each with different legal standards.

FMLA Interference

Definition: Interference occurs when an employer prevents an employee from exercising their FMLA rights or enjoying the benefits provided by FMLA.

Examples of interference:

  • Denying FMLA leave to an eligible employee
  • Refusing to restore an employee to their position (or equivalent) after FMLA leave
  • Failing to maintain health insurance during FMLA leave
  • Discouraging employees from taking FMLA leave
  • Requiring more medical documentation than legally permitted
  • Miscalculating FMLA leave time to deplete leave bank faster
  • Counting FMLA leave as an absence under a no-fault attendance policy

Legal standard: To prove interference, you don’t need to show the employer had bad intent. You only need to show that the employer’s actions prevented you from exercising your FMLA rights.

FMLA Retaliation

Definition: Retaliation occurs when an employer takes adverse action against an employee because the employee exercised their FMLA rights.

Examples of retaliation:

  • Firing an employee for taking FMLA leave
  • Demoting an employee upon return from FMLA leave
  • Reducing hours or reassigning to less desirable shifts
  • Giving negative performance reviews related to FMLA absence
  • Excluding employee from projects or opportunities
  • Harassment or hostile work environment due to FMLA use
  • Threatening or intimidating employees who request FMLA leave

Legal standard: To prove retaliation, you must show:

  1. You engaged in protected activity (requesting or taking FMLA leave)
  2. Your employer took adverse action against you
  3. There’s a causal connection between the protected activity and adverse action

Key difference: Retaliation requires showing the employer acted because of your FMLA leave. Timing is often critical—if you’re fired shortly after returning from FMLA leave, it creates an inference of retaliation.

Common FMLA Violations in Texas

Termination After FMLA Leave

Most common violation: Firing an employee shortly after they return from FMLA leave or while they’re on leave.

Employer justifications (often pretextual):

  • “We eliminated your position while you were gone”
  • “Your performance was poor before you left”
  • “We needed to make budget cuts”
  • “You didn’t return by the exact date specified”

Red flags for retaliation:

  • You had good performance reviews before FMLA leave
  • You were fired within days or weeks of returning from leave
  • The position wasn’t actually eliminated (someone else was hired or your duties were redistributed)
  • Similarly situated employees who didn’t take FMLA leave weren’t terminated

Refusal to Restore Position

Under FMLA, you must be restored to your original position or an “equivalent position” with:

  • Equivalent pay
  • Equivalent benefits
  • Equivalent working conditions
  • Equivalent duties and responsibilities

Violations:

  • Returning you to a lower-paying position
  • Moving you to a less desirable shift (night shift when you previously worked days)
  • Reassigning you to a position with fewer advancement opportunities
  • Giving you significantly different (lesser) job duties
  • Returning you as a “temporary” employee when you were permanent

Limited exceptions: Employers can deny restoration if:

  • Your position would have been eliminated regardless of FMLA leave
  • You’re a “key employee” (highest paid 10%) and restoration would cause substantial economic injury
  • You provided unequivocal notice that you wouldn’t return to work

Counting FMLA Leave Against Employees

Illegal practices:

  • Counting FMLA leave as an “occurrence” under attendance policies
  • Including FMLA leave in calculations for performance bonuses or raises
  • Denying promotion because of FMLA absence
  • Considering FMLA leave in layoff decisions
  • Reducing profit-sharing or 401(k) contributions due to FMLA time off

Example: Your employer has a “no-fault” attendance policy where 6 absences result in termination. They count your 10 days of FMLA leave as 10 absences and fire you. This is interference with your FMLA rights.

Legal rule: FMLA leave must be treated differently from unexcused or non-FMLA absences.

Discouraging FMLA Use

Illegal actions:

  • “If you take FMLA leave, we can’t guarantee your job will be here when you return”
  • “We need you here—can’t someone else care for your mother?”
  • “Taking leave now will hurt your chances for promotion”
  • Suggesting an employee quit instead of taking FMLA leave
  • Creating bureaucratic obstacles to requesting leave

Hostile work environment: Pattern of comments, harassment, or differential treatment after taking FMLA leave can constitute retaliation even if you’re not fired.

Demanding Excessive Documentation

FMLA allows employers to require medical certification, but they cannot:

  • Request diagnosis or detailed medical records beyond what certification forms require
  • Demand second or third opinions without legitimate reason
  • Require recertification more frequently than every 30 days (in most cases)
  • Contact your healthcare provider directly without authorization
  • Require documentation for every instance of intermittent leave (after initial certification)

Real-World FMLA Violation Examples

Understanding FMLA violations becomes clearer through concrete examples that illustrate both interference and retaliation.

Example 1: Termination Upon Return from Leave (Retaliation)

Scenario: Jennifer worked as a sales manager for five years with consistently excellent performance reviews. When her father was diagnosed with cancer, she requested 8 weeks of FMLA leave to care for him. Her employer approved the leave. Three days after returning to work, Jennifer was called into a meeting and terminated for “performance issues,” even though her sales numbers had been strong before her leave and no performance concerns were raised prior to her FMLA request.

Why this is illegal: This is classic FMLA retaliation. The timing (termination three days after FMLA return), combined with her strong performance history and lack of prior warnings, creates a clear inference that the termination was because of her FMLA leave, not legitimate performance issues.

What the employee should do:

  • Document the timeline (FMLA request date, leave dates, return date, termination date)
  • Gather all performance reviews showing strong performance before leave
  • Note that no performance issues were raised before FMLA leave
  • File DOL complaint or lawsuit within 2 years
  • Seek: back pay, reinstatement, liquidated damages, attorney’s fees

Example 2: Denied Leave for Eligible Employee (Interference)

Scenario: Michael works for a company with 80 employees and has been there for 18 months, working 45 hours per week. When his wife had complications during pregnancy requiring bedrest, Michael requested 4 weeks of FMLA leave to care for her and their other young child. His employer denied the request, stating “We’re too busy right now and can’t spare you.” Michael took the leave anyway to care for his wife, and was fired for “job abandonment.”

Why this is illegal: This is FMLA interference. Michael clearly qualifies for FMLA (employer has 50+ employees, he’s worked 12+ months and 1,250+ hours). His wife’s pregnancy complications and need for care constitute a serious health condition qualifying for FMLA. The employer cannot deny leave to an eligible employee for a qualifying reason, and firing him for taking protected leave is both interference and retaliation.

What the employee should do:

  • Document his FMLA eligibility (months of service, hours worked, employer size)
  • Obtain medical certification of wife’s serious health condition
  • Provide written notice of FMLA request (even retroactively)
  • File DOL complaint immediately
  • File lawsuit for interference and retaliation
  • Seek: back pay, reinstatement, benefits restoration, liquidated damages

Example 3: Demotion After FMLA Return (Retaliation)

Scenario: Sarah worked as an assistant manager at a retail store earning $55,000/year. She took 10 weeks of FMLA leave following the birth of her child. When she returned, her employer said her assistant manager position had been “restructured” and she was reassigned to a regular sales associate position at $35,000/year. The employer claimed this was part of a company-wide reorganization, but Sarah’s assistant manager duties were simply redistributed to other existing managers.

Why this is illegal: FMLA requires restoration to the same position or an “equivalent position” with equivalent pay, benefits, and conditions. A $20,000 pay cut and demotion from management to sales associate is not an equivalent position. The pretextual “restructuring” that simply redistributed her duties rather than eliminated the role suggests retaliation.

What the employee should do:

  • Document the pay reduction ($55,000 to $35,000)
  • Show that assistant manager duties still exist (just redistributed)
  • Demonstrate this is not an equivalent position
  • Request immediate restoration to assistant manager role with back pay
  • File DOL complaint if employer refuses
  • Seek: restoration to position, back pay for wage difference, liquidated damages

Example 4: Counting FMLA Against Attendance Policy (Interference)

Scenario: David’s employer has a “no-fault” attendance policy where 6 absences in a calendar year result in termination. David took FMLA leave for his own serious back condition, missing 12 days of work over three months for medical treatments. His employer counted each FMLA day as an “occurrence” under the attendance policy. When David reached 6 occurrences (all FMLA-protected), he was fired for violating the attendance policy.

Why this is illegal: FMLA interference. Employers cannot count FMLA-protected absences against employees under attendance policies. FMLA leave must be treated separately from unexcused or non-FMLA absences. Terminating an employee for accumulating FMLA absences violates the Act.

What the employee should do:

  • Document that all absences were FMLA-protected (medical certifications)
  • Obtain copy of attendance policy showing FMLA absences were counted
  • File DOL complaint for FMLA interference
  • File lawsuit for wrongful termination
  • Seek: reinstatement, back pay, policy changes, liquidated damages

Example 5: Hostile Work Environment After FMLA (Retaliation)

Scenario: After Lisa returned from 6 weeks of FMLA leave for her own surgery, her supervisor began making hostile comments: “Must be nice to take a vacation on the company’s dime,” “Don’t expect special treatment just because you were out,” and “I hope you’re not planning to take more time off.” Lisa was excluded from important meetings she previously attended, passed over for a promotion she was qualified for, and given the worst shift schedule despite her seniority. She wasn’t fired, but the hostile treatment made her work environment unbearable.

Why this is illegal: FMLA retaliation creating a hostile work environment. While Lisa wasn’t fired, the pattern of adverse actions (hostile comments, exclusion from meetings, denied promotion, worse schedule) constitutes retaliation for taking FMLA leave. The supervisor’s explicit comments linking the treatment to her FMLA leave prove the causal connection.

What the employee should do:

  • Document every hostile comment with dates, witnesses, and exact quotes
  • Document all adverse actions (meeting exclusions, promotion denial, schedule changes)
  • File internal HR complaint first
  • File DOL complaint for FMLA retaliation
  • Consider hostile work environment claim
  • Seek: cessation of harassment, transfer of supervisor, compensatory damages for emotional distress

Example 6: Refusal to Provide Intermittent Leave (Interference)

Scenario: Tom has diabetes requiring regular insulin monitoring and periodic doctor visits. His doctor certified that he needs FMLA intermittent leave for up to 4 hours per month for medical appointments and management of his condition. Tom’s employer approved the FMLA but then required him to provide a doctor’s note for every single absence, called him constantly during leave time asking when he’d return, and told him “This intermittent leave thing is really inconvenient for us—maybe you should find a job that’s more flexible.”

Why this is illegal: FMLA interference through harassment and excessive documentation demands. Once intermittent FMLA is certified, employers cannot require additional documentation for each instance of leave (absent specific regulatory exceptions). Harassment and discouragement from using approved FMLA leave also violates the Act.

What the employee should do:

  • Document excessive documentation demands
  • Save communications showing employer harassment during leave
  • File complaint with DOL Wage and Hour Division
  • Request employer cease interference
  • Continue taking certified FMLA leave as approved
  • Seek: cessation of harassment, policy compliance, potential damages

Example 7: “Position Eliminated” While on FMLA (Questionable – Fact-Specific)

Scenario: Mark took FMLA leave for surgery. While he was on leave, his employer faced financial difficulties and conducted a legitimate reduction in force, eliminating 15% of positions including Mark’s role. Mark argues this is FMLA retaliation. His employer argues the RIF was planned before his leave and his position would have been eliminated regardless.

Why this MAY or MAY NOT be illegal: This is fact-specific. Employers CAN eliminate positions during FMLA leave if the position would have been eliminated even if the employee hadn’t taken leave. Key questions:

  • Was the RIF truly legitimate and unrelated to Mark’s leave?
  • Would Mark’s position have been eliminated if he hadn’t taken FMLA?
  • Were similarly situated non-FMLA employees also terminated?
  • Was there evidence of pretext (e.g., Mark’s duties redistributed rather than eliminated)?

What the employee should investigate:

  • Timeline of when RIF was planned versus when FMLA was requested
  • Whether other employees at similar levels were also terminated
  • Whether the position was truly eliminated or duties redistributed
  • Any evidence of discriminatory motive
  • Consult attorney to evaluate strength of claim

Example 8: Denied Family Leave – Wrong Relationship (Interference)

Scenario: Amanda’s grandmother, who raised her, had a stroke requiring intensive care. Amanda requested FMLA leave to care for her grandmother. Her employer denied the request, stating “FMLA only covers parents, not grandparents.” Amanda took the leave anyway to care for her grandmother and was terminated.

Why this is illegal DEPENDS on the facts: Standard FMLA covers care for spouse, child, or parent—NOT grandparents. HOWEVER, if Amanda can prove her grandmother stood “in loco parentis” (in place of a parent) while Amanda was growing up, she may qualify. The employer’s blanket denial without investigating the in loco parentis relationship could be interference.

What the employee should do:

  • Determine if grandmother relationship qualifies under in loco parentis standard
  • Provide documentation showing grandmother raised her (e.g., lived together, provided financial support, day-to-day care)
  • File DOL complaint arguing in loco parentis relationship
  • Consult employment attorney to evaluate strength of claim
  • Understand this is a harder case than standard parent/child FMLA

Key Patterns in These Examples

Strong FMLA violation cases have:

  • Suspicious timing: Adverse action shortly after FMLA request or return
  • Pretextual reasons: Employer’s stated reason doesn’t match facts or is inconsistent
  • Direct evidence: Comments linking adverse action to FMLA leave
  • Pattern of interference: Multiple obstacles to exercising FMLA rights
  • Lack of legitimate business justification: No evidence position would have been eliminated anyway

Weaker or questionable cases involve:

  • Legitimate business decisions: RIFs, restructurings, or performance issues that predated FMLA and affected non-FMLA employees
  • Significant time gap: Adverse action months or years after FMLA leave (weakens causal connection)
  • Strong performance documentation: Employer has extensive documentation of performance problems before FMLA
  • Non-qualifying relationships or conditions: Employee doesn’t meet FMLA eligibility or leave doesn’t qualify

Critical lesson: Document everything. The difference between proving FMLA retaliation and losing your claim often comes down to timeline evidence, performance documentation, and proof of pretextual reasons.

How to Prove FMLA Retaliation

Burden of Proof

To establish a FMLA retaliation claim, you must prove:

  1. Protected activity: You requested FMLA leave, took FMLA leave, or opposed unlawful FMLA practices

  2. Adverse employment action: Your employer fired, demoted, suspended, reduced pay, or otherwise materially changed your employment conditions

  3. Causal connection: Your FMLA activity caused the adverse action

Timing is critical: If adverse action occurs shortly after FMLA leave (days, weeks, or even a few months), this timing creates an inference of causation.

Evidence That Strengthens Your Case

Documentation to gather:

  • FMLA leave request forms and approval documents
  • Medical certification paperwork
  • Email or written communications about leave
  • Performance reviews (especially positive reviews before FMLA leave)
  • Termination letter or documentation of adverse action
  • Comparator evidence (similarly situated employees who weren’t fired)
  • Witness statements from coworkers
  • Evidence of pretextual reasons (inconsistencies in employer’s explanation)

Examples of strong evidence:

  • Supervisor email saying “We need to find a reason to terminate Jane after she gets back from leave”
  • Positive performance review two months before FMLA leave, followed by sudden termination upon return
  • You were fired for “poor performance” but specific examples of poor performance occurred before FMLA leave and weren’t addressed then
  • Your position was “eliminated” but your duties were redistributed to other employees

Employer’s Defense

Your employer may argue the adverse action was taken for legitimate, non-retaliatory reasons. They must prove:

  • The decision was made for legitimate business reasons unrelated to FMLA leave
  • They would have taken the same action even if you hadn’t taken FMLA leave

Pretextual reasons: If you can show the employer’s stated reason is false or inconsistent, it strengthens your retaliation claim.

Filing an FMLA Complaint

If you believe your FMLA rights were violated, you have two options: file a complaint with the U.S. Department of Labor or file a lawsuit.

Filing with the Department of Labor (DOL)

Process:

  1. Contact the Wage and Hour Division (WHD) of the DOL
  2. File a complaint online, by phone, or in person
  3. WHD investigates your complaint
  4. If WHD finds violations, they may pursue remedies on your behalf

Benefits of DOL complaint:

  • Free (no attorney required)
  • DOL does the investigation
  • DOL has enforcement power

Limitations:

  • DOL may not pursue every case
  • Process can be slow
  • You have less control over outcome

Deadline: You should file promptly, though the statute of limitations for DOL to bring an action is 2 years (3 years for willful violations).

Contact information:

  • Website: www.dol.gov/agencies/whd
  • Phone: 1-866-4US-WAGE (1-866-487-9243)
  • Texas WHD offices in Dallas, Fort Worth, Houston, San Antonio, and other cities

Filing a Private Lawsuit

Timeline: You must file a lawsuit within 2 years of the violation (or 3 years if the violation was willful). This is the statute of limitations and is strictly enforced.

Remedies available:

  • Lost wages and benefits: Back pay from termination to present
  • Front pay: Future lost earnings if reinstatement isn’t feasible
  • Reinstatement: Return to your former position
  • Liquidated damages: An additional amount equal to your lost wages (essentially doubling the award) unless the employer proves they acted in good faith
  • Attorney’s fees and costs: The employer must pay your attorney’s fees if you win

Example: If you were fired after taking FMLA leave and were unemployed for 6 months before finding a new job at lower pay, you could recover:

  • 6 months of lost wages ($30,000)
  • Liquidated damages ($30,000)
  • Difference in pay going forward (front pay)
  • Attorney’s fees
  • Total: Potentially $60,000+ plus ongoing damages

Consult an employment attorney: FMLA cases are complex. An attorney can evaluate your case, gather evidence, negotiate with your employer, and represent you in court if necessary.

Texas-Specific Considerations

At-Will Employment Doesn’t Override FMLA

Texas is an at-will employment state, meaning employers can generally fire employees for any reason or no reason. However, at-will employment does not allow employers to violate federal law.

Common employer argument: “We can fire anyone for any reason in Texas.”

Reality: You can fire employees for any legal reason. Firing someone for taking FMLA leave is illegal retaliation, not a lawful exercise of at-will employment.

Texas Workers Have No Additional State Leave Protections

Unlike some states that have state family leave laws with their own anti-retaliation provisions, Texas provides no state-level protections beyond federal FMLA.

What this means: You rely entirely on federal FMLA protections. There’s no Texas state agency to file leave law complaints with (other than jury duty and voting leave violations).

Federal Court Jurisdiction

FMLA cases are federal claims, typically filed in federal court. Texas federal courts (Northern District, Southern District, Eastern District, Western District) handle FMLA cases regularly.

Frequently Asked Questions

Can my employer fire me right after I return from FMLA leave?

Only if they have a legitimate, non-retaliatory reason unrelated to your FMLA leave. If you’re fired shortly after returning from FMLA leave, it raises a strong inference of retaliation. Document everything and consult an attorney.

What if my employer says my position was eliminated while I was on leave?

If your position was legitimately eliminated as part of a broader restructuring that would have occurred regardless of your leave, the termination may be legal. However, if the “elimination” is pretextual—meaning your duties were simply redistributed or someone else was hired—you may have a retaliation claim.

Do I have to file with the DOL before filing a lawsuit?

No. You can file a private lawsuit without first filing a DOL complaint. However, if the DOL is already investigating or pursuing your case, you may be barred from filing a private lawsuit.

How long do I have to file an FMLA retaliation claim?

2 years from the date of the violation (or 3 years if the violation was willful). Do not delay—statutes of limitations are strictly enforced, and waiting too long will bar your claim permanently.

What if I was fired for a legitimate reason unrelated to FMLA?

If your employer can prove the termination was for a legitimate, documented reason (poor performance, misconduct, business downturn) that would have resulted in termination even without FMLA leave, you may not have a retaliation claim. However, if the reason is pretextual or timing is suspicious, you may still prevail.

Can I be disciplined for excessive absences that include FMLA leave?

FMLA leave cannot be counted against you. If you have non-FMLA absences that violate attendance policies, you can be disciplined for those. But FMLA-protected absences must be excluded from any attendance-based discipline.

Protecting Your FMLA Rights

If you’re facing retaliation for taking FMLA leave, time is critical.

Steps to take immediately:

  1. Document everything: Save emails, texts, performance reviews, leave paperwork, termination letters, and witness contact information
  2. File for unemployment: If you were fired, apply for unemployment benefits immediately
  3. Consult an employment attorney: Get legal advice within days or weeks of the adverse action
  4. File a DOL complaint or lawsuit before the deadline: Don’t wait until the statute of limitations is about to expire

Red flags to watch for:

  • Supervisor makes comments about your leave being “inconvenient” or “burdensome”
  • You’re suddenly criticized after returning from leave
  • Performance reviews become negative after positive history
  • You’re excluded from meetings, projects, or opportunities
  • Employer begins documenting “performance issues” shortly after your return

FMLA retaliation is illegal, and you have powerful remedies if you can prove your case. Don’t let fear of your employer prevent you from exercising your legal rights.

For related information, explore:

Return to the Texas Leave Laws Hub for a complete overview of leave rights in Texas.

Legal Disclaimer: This article provides general information about FMLA retaliation rights in Texas and should not be construed as legal advice. Employment laws are complex and fact-specific. If you believe your FMLA rights have been violated, consult with a qualified employment law attorney immediately to protect your rights and meet filing deadlines.