Retaliation and Performance Reviews Post-FMLA

From Praise to Payback: How FMLA Leave Can Tank Your Reviews

Stepping away from work under the Family and Medical Leave Act (FMLA) isn’t exactly a walk in the park. Whether you’re recovering from surgery, helping out a loved one, or navigating postpartum challenges, the last thing you should worry about is your job being at risk when you return.

But in New York, too many workers come back from protected leave only to face negative performance reviews that seem to come out of nowhere. That’s when experienced FMLA retaliation attorneys become essential. They know how to spot retaliation disguised as feedback, gather the right proof, and challenge it head-on.

If your glowing track record suddenly tanked after you returned to work, you’re not imagining it. At Horn Wright, LLP, our New York employment attorneys understand how the FMLA plays out differently depending on where you live. New York, Maine, New Hampshire, and Vermont each apply their own interpretation of the law. Those differences affect how retaliation is reviewed, what deadlines apply, and how much leverage you actually have.

Your Career Deserves Better Than a Post-FMLA Freefall

That pressure you’re feeling after coming back from leave is very real and often rooted in how your workplace is reacting. For many, that “welcome back” feels more like a warning shot than real support.

From Midtown Applause to Midtown Ambush: The Fast Flip in Feedback

Before taking leave, your track record might’ve been spotless. Solid reviews, regular recognition, maybe even bonuses for going the extra mile. But for many New Yorkers, everything changes the moment they return.

Retaliation tied to programs like the Paid Family Leave (PFL) can show up in subtle ways. It hides in small changes, awkward silences, or suddenly strained relationships with management.

The warning signs pile up fast. Meetings turn tense, tasks are nitpicked, and praise morphs into vague criticism. You’re still catching your breath from leave, but now you’re dodging write-ups that never made sense in the first place. In 2024, 115 complaints were filed for denied FMLA leave, which highlights just how widespread retaliation and noncompliance have become.

Cooked-Up Critiques and Clocked Lies: When Paper Trails Don’t Add Up

Returning from protected leave can trigger more than awkward glances. For some, it marks the start of retaliation disguised as routine procedure. Some employers hand you a performance improvement plan (PIP) packed with outdated or vague complaints.

When those issues were never mentioned before your leave, it’s no coincidence. The timing feels targeted, and the accusations seem flimsy. Retroactive write-ups after protected leave could directly violate your rights and protections.

Here’s what these kinds of write-ups usually include:

• Happened months ago, before your leave
• Were never mentioned to you before
• Include “new metrics” you never knew existed

These write-ups may seem like isolated issues, but they often follow a calculated pattern used to justify demotions or terminations. In Manhattan offices or Brooklyn businesses, backdated reviews can create a paper trail designed to make retaliation appear routine. 

Employees returning from leave might suddenly face blame for missed tasks or be judged by new standards like ‘response time’ or ‘collaboration,’ even if those metrics were never used before. In reality, these reviews often stem from favoritism in the workplace and are used to quietly push targeted employees out.

What HR Doesn’t Want You to Know About That Sudden Drop in Reviews

If that review felt off, you’re probably right to question it. What comes next can reveal even more about your employer’s true intentions.

A Sudden Drop? Your Review Might Be More Than Just Bad News

Retaliation after FMLA leave is illegal under federal law, and protections for individuals under FMLA prohibit employers from firing, demoting, or handing out damaging reviews in response to someone using their leave.

These legal safeguards are meant to ensure your job isn’t put at risk simply because you exercised your right to take protected leave. One major warning sign? A review that seems unusually harsh or badly timed.

When timed suspiciously, a bad review can signal retaliation, especially if:

• Your prior reviews were positive
• Your negative review came shortly after returning from FMLA
• The criticisms are vague, exaggerated, or not supported by facts

But it’s not always about a single review. The overall shift in treatment after returning from leave can carry major consequences, like denied promotions or even job loss. This kind of pattern often mirrors the behavior seen in hostile work environment cases, where timing and tone expose the real motive behind the feedback.

When Retaliation Isn’t Random: Spotting the Office-Wide Pattern

Retaliation doesn’t always target just one employee. It can reflect a deeper pattern within an organization, especially when multiple workers returning from FMLA face sudden negative feedback or even termination.

These situations often connect to broader concerns about wrongful discharge following protected leave, where terminations may be disguised as performance-based decisions despite the employee’s prior clean record and legal right to take leave.

What Real Investigators and the EEOC Zero In On

When a case like this goes before a court or an investigator from the New York State Division of Human Rights or the Equal Employment Opportunity Commission (EEOC), they go beyond just reading the performance review. 

They examine key factors that reveal the bigger picture:

• Timing – How close is the negative review to your return?
• Consistency – Are other employees held to the same standards?
• Past Performance – What did your last few reviews say?
• Documentation – Is there a paper trail that contradicts your employer’s story?
• Communication – Did supervisors communicate any concerns before your leave?

These elements help paint a more complete story. For instance, if your record was spotless before leave and suddenly you’re facing write-ups, the timeline becomes suspect. Investigators are trained to recognize patterns that suggest retaliation, and they don’t rely on reviews alone.

They also comb through emails, chats, and meeting logs to uncover motive and context. Something as simple as a message saying, “We really need to replace them now that they’re out,” could carry serious weight in legal proceedings.

When Reviews Turn Rogue: Time to Take a Stand

Hit with a harsh review right after coming back from FMLA leave? Getting hit with that kind of review can feel unfair and unsettling. It may even signal that something deeper is at play. Unexpected write-ups, vague critiques, or suddenly shifting expectations aren’t always random. They might cross the line into retaliation. If any of this strikes a nerve, trust your gut. 

Reach out to Horn Wright, LLP, to connect with FMLA retaliation attorneys who can help you understand your rights and take the next step to protect what you’ve worked hard to build.