What Can I Do If My California Employer Is Retaliating Against Me for Taking FMLA Leave?

January 21, 2025

Table of Contents

1. Key Takeaways
2. Is This Your Situation?
3. What Counts as FMLA Retaliation?
4. FMLA vs. CFRA: Which Law Protects You?
5. Your Rights When You Return From Leave
6. What to Consider If You Suspect Retaliation
7. What Can You Recover for FMLA or CFRA Retaliation?
8. How Long Do I Have to File an FMLA Retaliation Claim?
9. When to Talk to a California Employment Lawyer
10. Frequently Asked Questions
    1. My employer has fewer than 50 employees. Am I protected?
    2. Do I have to get my exact job back?
    3. Can I be fired while on FMLA or CFRA leave?

FMLA retaliation happens when an employer punishes you for asking for or taking protected family or medical leave. In California, two laws usually apply: the federal Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA). Below, we explain who each law covers, what counts as retaliation, and why California’s law often reaches further.

Can my California employer punish me for taking FMLA or CFRA leave?

No. Federal law bars employers from “interfering with, restraining, or denying the exercise of” FMLA rights (U.S. Department of Labor). California’s CFRA makes it unlawful to “discharge, fine, suspend, expel, or discriminate against” someone for taking protected leave (Gov. Code 12945.2(k)).

Key Takeaways

• CFRA covers employers with 5 or more employees (Gov. Code 12945.2). The federal FMLA generally covers private employers with 50 or more (DOL).
• Both laws generally provide up to 12 workweeks of leave in a 12-month period for eligible employees.
• CFRA guarantees a return to the same or a comparable position, and your employer must keep paying for group health coverage during the leave.
• Federal FMLA damages are limited to lost pay and benefits, interest, and liquidated damages (29 U.S.C. 2617). California claims can include emotional distress and punitive damages (CRD).
• Deadlines differ: generally 2 years for an FMLA lawsuit (3 if willful), and 3 years to begin the process with the CRD for many California claims.

Is This Your Situation?

• You came back from leave to a different job, fewer hours, or lower pay.
• You were written up or given a bad review soon after you asked for leave.
• Your manager discouraged you from taking leave or asked you to work while on it.
• You were fired during or right after your leave.
• Your health coverage stopped while you were out.

What Counts as FMLA Retaliation?

FMLA retaliation, or CFRA retaliation under California law, is any adverse action taken because you requested or used protected leave. CFRA lists the actions directly: it is unlawful to “discharge, fine, suspend, expel, or discriminate against” an individual for exercising the right to family care and medical leave (Gov. Code 12945.2(k)(1)). It is also unlawful to “interfere with, restrain, or deny the exercise of” CFRA rights (12945.2(q)).

That means two kinds of claims can arise:

• Retaliation: punishment after you took leave, like a demotion, a pay cut, a sudden bad review, or a termination.
• Interference: blocking or discouraging the leave itself, like denying an eligible request or pressuring you to skip it.

Our article on what counts as retaliation under California law covers the evidence that often matters.

FMLA vs. CFRA: Which Law Protects You?

Many California workers qualify under CFRA even when the FMLA does not apply, mainly because CFRA covers much smaller employers.

	California CFRA	Federal FMLA
Employers covered	5 or more employees (12945.2(b))	Private employers with 50 or more employees in 20 or more workweeks; public agencies (DOL)
Employee eligibility	More than 12 months of service and at least 1,250 hours in the prior 12 months	At least 12 months, 1,250 hours, and a worksite with 50 or more employees within 75 miles
Leave length	Up to 12 workweeks in a 12-month period	Up to 12 workweeks in a 12-month period (26 for military caregiver leave)
Return to work	Same or comparable position	Same or equivalent job, with the same pay and benefits
Health coverage	Employer maintains and pays for group health plan coverage	Employer continues group health insurance on the same terms
Damages	Can include emotional distress and punitive damages (CRD)	Lost pay and benefits, interest, liquidated damages, and equitable relief (29 U.S.C. 2617)

Leave connected to pregnancy and a new child has its own rules. See our article on maternity leave in California. If you need wage replacement while on leave, California Paid Family Leave is a separate state benefit. If you were treated worse because of a pregnancy, a pregnancy discrimination lawyer in Los Angeles can review what happened.

Your Rights When You Return From Leave

Under CFRA, leave is not treated as granted unless the employer gives “a guarantee of employment in the same or a comparable position upon the termination of the leave” (Gov. Code 12945.2(a)). During the leave, the employer “shall maintain and pay for coverage under a ‘group health plan'” for up to 12 workweeks (12945.2(e)(1)).

If your condition limits what you can do when you come back, your employer may also have duties under disability law. Read about reasonable accommodation in California and what to do if you think you were fired for medical reasons.

What to Consider If You Suspect Retaliation

1. Consider keeping a timeline: when you asked for leave, when it was approved, when you returned, and when each negative change happened. Timing is often key evidence.
2. Keep documents you are lawfully entitled to keep, such as your leave approval, pay stubs, reviews, and messages sent to you. Do not take confidential company files.
3. Consider raising the concern in writing. If appropriate, describe accurately what changed and when.
4. If you are offered a severance agreement, consider speaking with an employment attorney before signing it.

Separately, you may be able to use paid sick leave for shorter absences, which has its own protections.

What Can You Recover for FMLA or CFRA Retaliation?

It depends on which law applies. Under the federal FMLA, an employer can be liable for “any wages, salary, employment benefits, or other compensation denied or lost,” plus interest and liquidated damages in an equal amount, along with equitable relief “including employment, reinstatement, and promotion” (29 U.S.C. 2617(a)(1)). The FMLA does not list emotional distress or punitive damages.

California’s CFRA is part of the Fair Employment and Housing Act. For FEHA claims, the Civil Rights Department lists remedies including back pay, emotional distress damages, and punitive damages (CRD). Our article on the average retaliation settlement in California explains what affects case value.

How Long Do I Have to File an FMLA Retaliation Claim?

Different claims have different deadlines. An FMLA lawsuit generally must be brought “not later than 2 years after the date of the last event” of the violation, or within 3 years for a willful violation (29 U.S.C. 2617(c)). For many California FEHA claims, including CFRA, a complaint generally “must be filed within three years” (CRD). An employment attorney can evaluate which deadlines apply to your situation.

When to Talk to a California Employment Lawyer

If you were demoted, cut back, disciplined, or fired after asking for or taking family or medical leave, consider speaking with a California employment lawyer. An attorney can look at the timeline and the reasons your employer gave. They can also explain your options and the deadlines that apply. Learn more about our retaliation practice.

At Abramson Labor Group, we represent California employees facing retaliation for taking protected leave. Our case reviews are free and confidential, and we work on contingency. Request your free case evaluation or call us at (213) 493-6300.

Frequently Asked Questions

My employer has fewer than 50 employees. Am I protected?

Possibly. The federal FMLA generally covers private employers with 50 or more employees, but CFRA covers employers with 5 or more (Gov. Code 12945.2). You still need to meet the service and hours requirements.

Do I have to get my exact job back?

Not always the exact job. CFRA requires the same or a comparable position (Gov. Code 12945.2(a)), and the DOL says FMLA requires the same or an equivalent job with the same pay and benefits (DOL).

Can I be fired while on FMLA or CFRA leave?

Not because of the leave. Firing someone because they took protected leave is unlawful (Gov. Code 12945.2(k)). A wrongful termination lawyer can evaluate whether the reason your employer gave holds up.

This article is general information about California law, not legal advice. Every situation is different. For advice about your specific case, talk to a licensed California employment attorney.