Can you refuse to hire someone for filing an FMLA lawsuit against a prior employer?

Oh, that collective sigh of relief of not receiving a daily email update yesterday from The Employer Handbook. (Yes, you can sign up to receive daily email alerts to my blog).

Folks, I’m sorry. Monday, I was a deadbeat; I didn’t pay my MailChimp bill. So, if you rely upon email to receive my daily blog posts, you missed out Monday on what was probably the post of the year definitely the post of the day.

But, today, I’m all paid up and back in MailChimp’s good graces. They even sent me a my own personal mailchimp. I named him Buddy.

Now where did I put my pills?

Ok, moving on…

Well, actually, before I move on. To those folks who get my blog posts emailed to them, are you liking the new 8:00 AM EDT delivery time? Would you prefer that I go back to later in the morning? Let me know here.

And now back to the show.

By the way, I picture at least a handful of you with fingers crossed hoping that the answer is yes because you a friend of yours has been losing sleep over a recent hiring decision.

Anyway, in this recent case, that’s precisely what the plaintiff claimed happened to her.

Under the Family and Medical Leave Act, an employer cannot interfere with, deny, or retaliate against an employee who exercises his or her rights under the Act. Indeed, the Act’s regulations are clear that an employer cannot discriminate on this basis against a job applicant.  So, when the plaintiff alleged that she was told that she would not be hired because of an FMLA lawsuit against a prior employer, there was no way that the defendant would get summary judgment on that issue:

Martin phrased her claim in terms of discrimination and retaliation, which require a showing of intentional discrimination or retaliatory intent. Martin has demonstrated the existence of a material issue of fact from which intentional FMLA discrimination or retaliation reasonably could be inferred because in her own deposition testimony, Martin stated that Dunlap told her the FMLA lawsuit was the reason she was not hired. If believed, this is direct evidence of discrimination based on the exercise of FMLA rights. Therefore, summary judgment will be denied on the FMLA claim.

Takeaways for employers.

  1. Don’t be a deadbeat like me. Pay your bills on time.
  2. Subscribe to receive email updates from the blog.
  3. In addition to never letting an employee’s protected class motivate a hiring decision, don’t ask about prior FMLA lawsuits during the interview process. And don’t make any hiring decisions on that basis either.
  4. Or ignore #3, call me, and, refer back to #1.

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