FMLA/NJFLA Retaliation Success — Post-Maternity Wrongful Termination Settlement

LABOR & EMPLOYMENT · SONG LAW FIRM SUCCESS STORY

Client Profile

A Korean-American woman in her mid-thirties served as a Marketing Communications Manager at a mid-sized New Jersey manufacturer for six consecutive years. During her tenure, she received five consecutive years of positive performance reviews and led multiple team-based projects following departmental reorganization. Before the birth of her first child, she formally requested twelve weeks of combined FMLA and NJFLA leave through Human Resources, which the company approved.

Case Background

The client used the full twelve weeks of Family and Medical Leave Act (FMLA) leave in parallel with New Jersey Family Leave Act (NJFLA) coverage following childbirth. Two weeks before her scheduled return date, the company sent an email indicating that "organizational restructuring has reassigned her responsibilities." Upon returning, the client was placed in a reduced role without her prior team-lead authority. Approximately two months after her return, the company terminated her employment citing "performance deficiency." The problem: the alleged "performance deficiency" was directly contradicted by her five most recent performance reviews. Additionally, two newly hired individuals had been recruited during the reorganization to absorb her prior scope of work.

Legal Issues · Federal and NJ Framework

This case implicated three overlapping legal frameworks.

First, the federal FMLA (29 U.S.C. § 2601 et seq.) guarantees restoration to the same or an equivalent position after twelve weeks of leave. Under 29 U.S.C. § 2614(a), the returning employee must be restored to a position with substantially equivalent duties, pay, and working conditions. Under 29 U.S.C. § 2615(a)(2), retaliation for exercising FMLA rights is expressly prohibited.

Second, New Jersey's NJFLA (N.J.S.A. 34:11B-1 et seq.) applies concurrently with federal FMLA. N.J.S.A. 34:11B-9(a) prohibits termination, demotion, or adverse treatment on the basis of family-leave use.

Third, the New Jersey Law Against Discrimination (NJLAD, N.J.S.A. 10:5-1 et seq.) expressly recognizes pregnancy, childbirth, and breastfeeding as protected characteristics under N.J.S.A. 10:5-12(s), following the 2013 Pregnant Workers Fairness Act amendment. Termination based on pregnancy-related grounds constitutes unlawful sex discrimination.

The New Jersey Superior Court's decision in Wright v. Aventis Pasteur, Inc., 421 N.J. Super. 337 (App. Div. 2011), holds that termination in close temporal proximity to FMLA leave return can, standing alone, establish a prima facie retaliation case.

Song Law Firm Strategy

1. Immediate Evidence Preservation: We issued a litigation-hold notice to the company, requiring preservation of email records, internal chat platforms (Slack), personnel files, and performance evaluation documents, and prohibiting any destruction of relevant records.

2. Multi-Claim Strategy: We combined FMLA interference and retaliation claims (29 U.S.C. § 2615(a)(1) and (a)(2)) with NJFLA retaliation (N.J.S.A. 34:11B-9) and NJLAD pregnancy discrimination (N.J.S.A. 10:5-12(s)) to maximize damages exposure and negotiating leverage.

3. Historical Performance Documentation: We systematically compiled five years of performance reviews, commendation emails, and project outcomes to demonstrate that the "performance deficiency" rationale was pretextual.

4. Replacement Evidence: We documented through organizational charts and job descriptions that two new hires had been onboarded shortly before and after the client's termination to absorb her prior duties.

5. Leverage Through Discovery: Once discovery produced internal Slack messages in which the company's HR referred to the "performance case is thin," the company initiated early settlement negotiations.

Process and Timeline

• Intake and fact investigation: 2 weeks after initial consultation
• EEOC / NJ DCR filing: 6 weeks after intake (dual filing with federal EEOC and NJ Division on Civil Rights)
• Litigation-hold notice and discovery negotiations: 3 months after filing
• Discovery phase (document production, deposition preparation): 4-7 months after filing
• Internal Slack evidence obtained and settlement discussions: 8-10 months after filing
• Settlement execution: approximately 11 months after initial consultation

Result

Substantial six-figure settlement (precise figure protected by confidentiality clause), neutral reference letter, and no admission of liability by the company. The client used the settlement to fund a career-transition period and subsequently secured a comparable-level position at another organization.

Lessons Learned

A termination immediately following FMLA/NJFLA leave return is a scenario that draws heavy legal scrutiny. The plaintiff's evidentiary burden is significantly reduced when the following factors combine:

• Leave use was clearly known to HR and direct supervisors
• Adverse action occurred shortly after return (typically within six months — temporal proximity)
• Prior positive performance record undermines any pretextual performance-based rationale
• Replacement hiring or work redistribution is observable

In practice, the company's defense typically centers on "performance deficiency" or "organizational restructuring," but these pretexts collapse when confronted with five years of positive reviews and replacement-hire evidence. Internal company communications (Slack, Teams, email) often serve as decisive evidence, so it is critical to consult with an attorney immediately upon receiving a termination notice and to trigger a litigation-hold notice promptly.

The triple-claim strategy under FMLA · NJFLA · NJLAD offers significant advantages because each statute has different limitations periods, damages caps, and fee-shifting provisions. Combined claims allow plaintiffs to circumvent statutory damages caps and access attorney-fee recovery. NJLAD in particular recognizes fee-shifting and punitive damages, materially strengthening the plaintiff's negotiating position. Employees who experience pregnancy- or childbirth-related termination must file within two years (NJLAD) or three years (NJFLA) of the adverse action, so timeline management is essential.