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I have been out on intermittent FMLA for my father’s cancer and end of life care. I was told by a co-worker that there is restructuring that requires my DM to step down to a store manager. He was offered a few different stores and he chose the one I manage. I am a top performing store manager with an immaculate record. Could this be considered and FMLA violation? Also, they dragged their feet for 53 days on giving me intermittent leave and tried to force me to take a continuous FMLA leave until I argued it. I’m not supposed to know of this change. They are going to hit me with the news when I return.

Asked on December 24, 2018 under Employment Labor Law, Ohio


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

This would most likely not be retaliation IF there is a credible, non-retaliatory reason for the act, which appears to be the case. Your DM is being forced to step down and as you write, he, not the emloyer, happens to have selected your store--probably because it is well run and he wants to step into a well-run store. That is a reason that has nothing to do with your use of FMLA: it is based on a more-senior employee who has to take a step down chosing to do so at your location. Based on what you write, he could have chosen a different store; because it was him, not the employer, choosing your location, it would not be employer retaliation.

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