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Will the Supreme Court weigh in on FMLA standards?

The Supreme Court of the United States (SCOTUS) may dig into what standard is best to determine whether an employee has a valid claim under the Family and Medical Leave Act (FMLA).

What is the FMLA? The FMLA is a law that essentially provides employees with leave for certain medical and family reasons. Employers cannot negatively retaliate against an employee who takes FMLA leave. This includes termination of employment or other forms of discipline.

What is needed to build an FMLA case? Two standards often used in these cases include the “motivating factor” standard and the “but for” standard. The first involves the contention that an employee only needs to establish that his or her leave was a one reason for the negative action by the employer. In this standard, referred to as the “motivating factor” standard, other reasons can be present for the termination or disciplinary action. As long as the leave is one of the reasons, the employee may have a successful case.

The second standard is much more rigid. This “but for” standard requires the employee establish that the leave was the only reason for the negative action of the employer. The employee must prove that retaliation would not have occurred “but for” the leave.

What will the Supreme Court decide? As noted in a recent piece by Bloomberg BNA, it is unclear if the Supreme Court will agree to hear the case that questions the appropriate standard this session. However, previous cases with a similar question for cases involving age discrimination have held on the side of the “but for” standard. Critics counter that the Labor Department has applied the “motivating factor” standard, giving this standard more weight.

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