“Is it retaliation to have your company car, company laptop and company cell phone taken away during a FMLA leave of absence?”

Question: Hi, Alan. I am currently on a leave of absence under the Family and Medical Leave Act (“FMLA”). During my leave, my company took away from me my company car, my company laptop, and my company cell phone.

I have asked several others who have taken FMLA leave of absence; they all tell me they did not have their cars or other things taken away from them. I feel singled out.

Does the company have a right to take these away from me? Is that retaliation? Please share your thoughts. Thank you.

         Brookeville, Maryland

Answer: Well, “Hello” to you, too, Helen. Your question is a very interesting one, and in fact one that many courts are struggling with all across the country.

In the law, “retaliation” requires the presence of three elements: (1) a negative employment action (2) which is caused by (3) an employee engaging in a legally protected activity. Your FMLA leave is surely a “protected” activity. Your having your car, laptop and phone taken from you seems to have been a result of your taking your FMLA leave. But here’s the question: Does your “loss” of car, laptop and cell phone during your FMLA leave of absence constitute a “negative employment action?” I believe that almost all courts would likely say, “No.” And, so, this does not seem like FMLA retaliation to me.

What is a “negative employment action?” It can take many, many different forms, including being fired, being demoted, a reduction in compensation, a reduction in benefits, loss of vesting of stock, even being passed over for promotion. It seems to me that your company car, laptop and cell phone are not truly “benefits” or  “compensation,” but rather amenities provided to you to help you do your job. Usually such amenities are supposed to be used solely for business purposes, not personal purposes. If you are on FMLA leave of absence – and, hence, not supposed to be doing any work – surely you would not have a need to use them.

As far as your being “singled out” goes, it is an interesting point to consider. Perhaps this is a new policy of your employer. Perhaps your employer needs your equipment to be used by the person who is covering for you during your FMLA leave of absence. Perhaps they are being “retired” for new equipment to be assigned to you when you return. So long as your employer has some rational explanation for taking them away – and cost reduction would seem one to me – this kind of being “singled out” would, again, not seem retaliatory.

That is not to say that some court might see it differently. It’s just that I don’t expect they would.

Hope that helps. Thanks so much for writing in. Hope your (or your family member’s) health improves. And please recommend our blogsite to your friends. 

          Best, Al Sklover

© 2010 Alan L. Sklover, All Rights Reserved.