What is Considered FMLA Harassment in California?

FMLA harassment occurs when an employer interferes with, discourages, or retaliates against an employee for requesting or taking leave under the Family and Medical Leave Act. In California, employees are protected from this by both the federal FMLA and the California Family Rights Act (CFRA). Violations of either law can justify a lawsuit against an employer.

If you believe your employer has violated your FMLA or CFRA rights, contact the Law Offices of Jeremy Pasternak today for a free consultation.

Who the FMLA Covers

To qualify for FMLA leave, all of the following need to be true:

• Your employer has at least 50 employees within 75 miles of your worksite
• You have worked for your employer for at least 12 months
• You have logged at least 1,250 hours of work in the 12 months before your leave

FMLA thresholds leave out a significant number of California workers, particularly those at smaller companies. Fortunately for workers, state law can fill the gap. California's CFRA applies to employers with five or more employees, meaning workers who fall outside federal FMLA coverage may still have protected leave rights under state law.

Interference and Retaliation

FMLA harassment generally falls into one of two categories: interference and retaliation.

Interference happens before or during leave. It covers any employer conduct that blocks, discourages, or conditions an employee's ability to take protected time off. Examples may include:

• Telling an employee their job might not be there when they return
• Requiring them to handle work tasks while on leave
• Denying a leave request for a qualifying reason all constitute interference.

An employer doesn't need to intend harm for an interference to count as a violation. If the conduct discouraged or prevented the employee from using their rights, it qualifies.

Retaliation happens after an employee takes their leave. This may look like an employer who, upon return of the employee:

• Demotes them
• Cuts their pay
• Strips their responsibilities
• Terminates them

California looks closely at timing in possible FMLA violations. An adverse action taken shortly after an employee returns from leave can be enough to support a retaliation case.

Interference and retaliation are both prohibited under the FMLA and the CFRA, and either can justify a lawsuit.

A third circumstance that doesn't always fit neatly into either category is workplace hostility, a change in how the employee is treated that stops short of a formal adverse action but is clearly connected to the leave. For example:

• Coworkers who were previously collegial become cold or dismissive.
• Employee gets left off meeting invitations or communication threads they were previously included in.
• A manager's tone changes.

Examples of behavior alone may not constitute a violation, but documented together alongside a leave period, they can support a broader harassment case.

Intermittent Leave

Intermittent FMLA leave allows employees to take protected time off in separate blocks rather than all at once, which can be necessary for chronic health conditions, treatments, or recurring caregiving responsibilities. An employee managing a condition like cancer, Crohn's disease, or severe migraines may need to take a few hours or a day at a time, unpredictably, over the course of months.

Employers may find intermittent leave more disruptive than a single continuous absence, and that frustration sometimes leads to pressure on the employee. An employer may respond to the absences by making the employee feel guilty, questioning the legitimacy of each absence, or tracking their leave in ways not applied to other employees.

Scrutiny can cross into harassment quickly. An employee on intermittent leave who starts receiving writeups for attendance, gets pulled from projects, or finds their leave requests suddenly met with skepticism may be experiencing interference or retaliation under the FMLA and CFRA.

How California's CFRA Expands Your Protections

California's CFRA raises the floor that the federal FMLA sets, and it does so in several important ways.

Employer coverage is the most significant difference. FMLA applies to employers with 50 or more employees within a 75-mile radius, the CFRA applies to employers with just five or more employees, which brings a much larger portion of California's workforce under protected leave rights.

Qualifying reasons for leave are also broader under the CFRA. Beyond the conditions covered by the FMLA, California's law covers leave to care for grandparents, grandchildren, siblings, and domestic partners, none of whom are recognized under federal law.

Pregnancy-related conditions are also treated separately under the CFRA, which gives California employees additional protected leave on top of their standard 12 weeks.

For employees at companies with 50 or more employees, both laws apply and their protections layer on top of each other. At companies with fewer than 50 employees, the FMLA does not apply, but the CFRA still does for any employer with at least five employees, and an employer who ignores that distinction is still liable under state law.

How Pasternak Law Handles FMLA and CFRA Cases

Building the Timeline

Attorneys at the Law Offices of Jeremy Pasternak start by establishing a chronology of events:

• When was the leave requested and approved or denied?
• What changed in the employee's role, compensation, or treatment after they returned?
• How much time passed between the return and those changes?

A performance rating that was satisfactory before the leave and unsatisfactory after it, with no documented issues in between, is the kind of discrepancy that connects an adverse action to the leave itself.

Gathering Documentation

Pasternak Law collects and reviews:

• Emails and text messages between the employee and management
• HR communications related to the leave request and return
• Written performance evaluations from before and after the leave
• Records of the employee's title, compensation, and job responsibilities over time

A measurable difference between how the employee was rated or treated before and after leave is what establishes that the employer's conduct was tied to the leave, not to legitimate performance concerns.

Challenging the Employer's Explanation

Employers will typically argue that any adverse action was taken for a legitimate, unrelated reason. Pasternak Law examines whether that explanation is credible by looking at:

• Whether the timing between the leave and the adverse action is too close to be coincidental
• Whether other employees in comparable situations were treated differently
• Whether the written record supports or contradicts what the employer is claiming

25 Years Representing California Employees

Pasternak Law has represented California employees in FMLA and CFRA cases for over 25 years, across industries and at all levels of employment. Most cases resolve before trial, but when an employer refuses to offer a fair resolution, Pasternak Law is prepared to take the case to court.

Steps to Take if Your Employer Is Retaliating Against You

1. Document everything as it happens. Write down dates, times, what was said, and who was present. Save emails, text messages, and HR communications to a personal device or personal email account, not solely to your work computer or work email, which your employer can access or revoke.
2. Do not sign anything without having an attorney review it first. Severance agreements, termination letters, and "final warnings" frequently contain language that waives your right to pursue a case against your employer.
3. Report the retaliation to your HR department in writing. An email creates a record that your employer was put on notice. If HR does not respond or the retaliation continues, that non-response becomes part of your case.
4. File a complaint with the California Civil Rights Department or the Equal Employment Opportunity Commission. Both agencies investigate FMLA and CFRA violations and can compel an employer to respond. There are strict deadlines for filing, and missing them can forfeit your right to pursue a case.
5. Consult an employment attorney before taking any of the above steps if possible. How you sequence and time each action can affect the strength of your case. Pasternak Law offers free consultations and can help you determine what you have and what to do with

Protect Your Rights to Protected Leave

Protected leave is a right the law guarantees, and an employer who responds to that leave with pressure, demotion, hostility, or termination has crossed a line that California and federal law both recognize. Employers seldom admit the connection between an adverse action and a leave period, which is why documentation, chronology, and attorney experience are the deciding factors in FMLA and CFRA cases.

If your employer demoted you, terminated you, or made your work environment hostile after you took protected leave, you may have a case under the FMLA, the CFRA, or both. Call the FMLA attorneys of Law Offices of Jeremy Pasternak at 415-693-0300 or fill out our contact form for a free consultation to discuss what happened and whether the evidence supports a case.