Skip to Content
Michel | King Michel | King
Free Confidential Case Evaluation 205-265-1880

Am I Prohibited From Pursuing an FMLA Retaliation Claim If My Employer Succeeds on My Unemployment Compensation Claim?



The Family Medical Leave Act (“FMLA”) protects an individual’s right to take a leave of absence from work for specific family and medical reasons. There are two causes of action an employee can seek in federal court when an employee believes his statutorily protected rights have been violated under the FMLA; this blog addresses FMLA retaliation. To succeed on an FMLA retaliation claim, an employee must rebut the employer’s explanation for taking an adverse employment action against the employee. For example, if the adverse action was termination, the employee must rebut the employer’s reason for terminating him, and establish that the employer’s motivation for terminating the employee was retaliatory in nature.

Notably, many employees apply for unemployment compensation benefits through the state when they are terminated. Often times, the state law administration will make a determination regarding the reason the employer terminated the employee when ruling on unemployment compensation. The conflict with FMLA retaliation claims arises when the state administrative hearing officer determines the basis for the employee’s discharge and rules in favor of the employer, finding the termination motivated by a non-retaliatory reason. When this happens, the court must determine whether the employee can move forward with his or her FMLA case, or whether the employee is “collaterally estopped” from arguing that the employer was motivated by retaliatory reasons.

Collateral Estoppel

Collateral estoppel prevents a party from relitigating an issue previously raised in a prior action or proceeding and decided against that party. For example, when a state agency, acting like a court, resolves facts, in which the parties have had an opportunity to litigate, the court will give final and binding effect to the state agency’s factfinding. State agency decisions will prevent subsequent proceedings on the same issues if: (1) the parties are the same; (2) the issues are the same; (3) the parties had an adequate opportunity to litigate the issues in the administrative proceeding; (4) the issues to be precluded were actually litigated and determined in the administrative proceeding; and (5) the findings on the issues to be precluded were necessary to the administrative decision. If these five factors are satisfied as to the issue of why the employer terminated the employee, the state agency’s determination will halt the employee’s FMLA retaliation claim.

When can an employee move forward with FMLA retaliation?

Even if an employee sought and lost unemployment benefits, federal courts will permit employees to move forward with their FMLA claims when the above-mentioned elements are not satisfied. For example, if the record from the state agency does not adequately reflect that the issues were actually litigated, then the employee will be permitted to bring his or her claim. In other words, if

the record from the unemployment compensation benefits hearing does not reflect the reason for the employee’s termination, then the employee will not be “collaterally estopped” from establishing an FMLA retaliation claim. Likewise, if the ruling was a “default judgment” due to a party’s nonappearance at the hearing, and not based on the merits, then the parties were not given an adequate opportunity to litigate, and the employee will be permitted to move forward with the FMLA claim.


If you feel you might have a cause of action for retaliation pursuant to the FMLA, think about these considerations before you file for unemployment compensation benefits. If the state administrative hearing officer rules in favor of the employer and determines the reason for your termination was non-retaliatory, you may be prohibited from pursuing an FMLA retaliation claim in federal court.

If you feel your rights under the Family Medical Leave Act have been violated, or if you have any other questions regarding your employment rights, please contact the experienced Birmingham employment law attorneys at Michel | King. You can contact us either online or by calling us at (205) 319-9724. We are here to serve you!

Share To: