Paid Administrative Leave May Be Adverse Employment Action

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December 25, 2006

Being put on paid administrative leave after requesting leave under the Family and Medical Leave Act may be an adverse employment action, ruled a federal district judge in Arizona, one of the first to apply the reasonable employee standard established by the US Supreme Court in Burlington Northern v White, 87 EPD ¶42,394, June 22, 2006, to an FMLA case. That was a Title VII case and the Court ruled that a plaintiff seeking to establish an adverse employment action "must show that a reasonable employee would have found the challenged action materially adverse, 'which in this context means it well might have dissuaded a reasonable worker from [engaging in protected activity]'" (Foraker v Apollo Group, Inc dba Univ of Phoenix, DC Ariz, 153 LC ¶35,223).

The employee requested FMLA leave in 2004, after he had been given a new job title, additional responsibilities and a 10 percent raise. But his increased management and budgetary responsibilities, along with his raise, were withdrawn when he took the leave. Later, in 2005, he was placed on paid administrative leave after requesting additional FMLA leave. He still received compensation and other benefits, but he was relieved of all job responsibilities. He was not permitted to come into the workplace, and he did not have any interaction with his coworkers. Of course, during this time, he did not get any on-the-job experience or training, as he normally would have received, and he did not get employment reviews that could have led to increased responsibilities or pay.

A jury had found that the employee had experienced an adverse employment action in retaliation for requesting additional FMLA leave. Afterward, the employer's motion for judgment as a matter of law was denied on this administrative leave claim. With the evidence of what happened to the employee, the district judge applied Burlington and ruled that the employer's conduct of placing the employee on a paid administrative leave would dissuade a reasonable worker from requesting FMLA leave.

For more information on this and other topics, consult CCH Employment Practices Guide or CCH Labor Relations.


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