When HR professionals think about Family and Medical Leave Act (FMLA) retaliation claims, they often picture an employee being fired after taking leave. But in practice, retaliation can take much subtler forms — including pressure, ultimatums, or workplace actions that effectively force an employee out.
A recent U.S. Department of Labor (DOL) investigation involving the University of Tennessee is a strong reminder that employers can face liability even when they frame the separation as a “choice.” According to a 2026 U.S. Department of Labor Wage and Hour Division enforcement announcement, the university was found to have violated the FMLA after an employee on approved intermittent leave was allegedly told to resign or face termination. The DOL recovered $30,442 in back wages for the employee.
At this time, the matter appears to have been resolved through a DOL enforcement investigation rather than through published litigation. Even without a court ruling, the enforcement action highlights several recurring compliance risks that employers should take seriously — especially around intermittent leave administration, notice obligations, and manager communications.
Why This Case Matters to Employers
Intermittent leave requests are often where organizations get into trouble.
Unlike a continuous block of leave, intermittent FMLA leave can disrupt schedules, require coverage adjustments, and frustrate managers who are focused on operations. Those frustrations sometimes lead to comments or actions that create legal exposure.
According to federal investigators, the employee in the Tennessee matter had already been approved for intermittent FMLA leave related to a qualifying medical condition. The DOL alleged that instead of allowing the employee to continue utilizing protected leave, the employer presented the employee with two options: resign voluntarily or be terminated.
From an HR compliance standpoint, that distinction matters very little.
Under the FMLA, employers are prohibited from:
- Interfering with an employee’s exercise of protected leave rights
- Discouraging employees from using FMLA leave
- Retaliating against employees for requesting or taking protected leave
- Using leave as a negative factor in employment decisions
Courts and federal investigators often look beyond the employer’s characterization of an employment action and instead evaluate the practical impact on the employee’s ability to exercise protected rights.
Constructive Discharge and FMLA Risk
One reason this situation creates significant liability exposure is because resignation ultimatums can potentially support allegations of constructive discharge or unlawful interference with protected leave rights.
Constructive discharge occurs when an employer makes working conditions so intolerable that a reasonable employee feels forced to resign. While not every resignation ultimatum rises to that level, employers should understand that telling an employee on protected leave to “resign or be fired” is unlikely to be viewed favorably by the DOL or a court.
Even absent formal termination paperwork, investigators may still conclude that an employer interfered with an employee’s protected leave rights or engaged in unlawful retaliation.
The DOL Also Cited Notice and Policy Failures
The Tennessee investigation reportedly involved more than just the resignation issue.
The DOL also found that the employer failed to provide the employee with complete notice of their FMLA rights and responsibilities. That matters because the FMLA contains several technical notice obligations that employers frequently overlook.
Covered employers generally must:
- Display and distribute required FMLA notices
- Notify employees of eligibility within five business days after learning a leave request may qualify
- Provide rights and responsibilities notices
- Issue designation notices when leave is determined to qualify under the FMLA
- Maintain accurate leave and payroll records related to FMLA usage
- Restore employees to the same or an equivalent position following protected leave
These requirements sound straightforward, but compliance failures are common — particularly in organizations where leave administration is decentralized or heavily manager-driven.
Manager Behavior Often Creates the Biggest Exposure
Many FMLA claims begin long before a termination decision.
In my experience, the most significant legal exposure often comes from frontline manager behavior rather than formal HR policy. Comments expressing frustration about leave usage, complaints about staffing burdens, or pressure to delay or avoid leave can all become evidence in an FMLA retaliation claim.
Common high-risk manager behaviors include:
- Suggesting an employee’s leave is causing operational problems
- Pressuring employees to return early
- Discouraging intermittent leave usage
- Changing schedules or assignments after leave requests
- Tracking attendance points for protected absences
- Treating employees differently after protected leave activity
- Making comments about reliability, commitment, or dependability tied to leave usage
Managers frequently do not realize these actions can create liability — particularly when they believe they are simply addressing performance or operational concerns.
Key Takeaways for HR Leaders
Audit Your FMLA Policies
Many employers have FMLA policies that are outdated, incomplete, or inconsistent with current practices. Review your policy language to ensure it clearly explains:
- Employee eligibility requirements
- Rights and responsibilities
- Medical certification procedures
- Intermittent leave administration
- Call-in expectations
- Benefits continuation
- Return-to-work rights
An incomplete policy can itself become part of a DOL investigation.
Train Supervisors on Retaliation Risk
Frontline supervisors are often the biggest compliance vulnerability in leave administration.
Training should specifically cover:
- What managers can and cannot say about protected leave
- When HR must be involved
- How intermittent leave works
- Prohibited retaliation behaviors
- Documentation expectations
- Attendance policy interaction with FMLA
Many retaliation claims stem from poorly trained supervisors reacting emotionally to staffing challenges.
Review Your Leave Designation Process
The FMLA’s notice timelines are strict.
Once an employer has enough information to believe leave may qualify, the organization generally has five business days to provide eligibility notice. Delays, inconsistent paperwork, or informal handling processes can create compliance issues quickly.
If your organization is still managing leave through spreadsheets, email chains, or decentralized tracking, it is worth evaluating whether your systems adequately support compliant administration, documentation, and record retention.
Carefully Evaluate Separation Decisions Involving Protected Leave
Any disciplinary action or separation involving an employee on protected leave should receive heightened HR and legal review.
Employers should carefully evaluate:
- Timing of the action
- Documentation consistency
- Prior treatment of similar employees
- Whether leave usage influenced the decision
- Whether managers expressed frustration about leave
- Whether performance concerns predated protected activity
Temporal proximity alone does not automatically establish retaliation, but close timing between protected leave activity and an adverse employment action is often one of the first issues investigators examine.
Final Thoughts
The recent DOL action involving the University of Tennessee is a reminder that FMLA retaliation claims are not limited to straightforward terminations. Pressure tactics, resignation ultimatums, and inconsistent leave administration can all create liability — particularly when managers are not properly trained.
For employers, the safest approach is proactive compliance: strong policies, consistent documentation, manager training, and careful review of employment decisions involving protected leave.
Organizations that treat FMLA administration as merely a paperwork exercise often discover too late that the real legal risk comes from day-to-day manager interactions.
Need Help Navigating FMLA Compliance?
CNY HR Now provides practical, on-demand HR support for small and mid-sized businesses across Central New York. From leave administration and employee relations to handbook development, investigations, compliance guidance, and manager training, we help employers reduce risk while building strong workplace practices.
If your organization needs support with FMLA administration, ADA accommodations, employee leave issues, or HR compliance strategy, CNY HR Now can help. Email Colleen at colleen.williams@cnyhrnow.com.
Public Sources
- U.S. Department of Labor, Wage and Hour Division enforcement announcement regarding FMLA violations involving the University of Tennessee (2026)
- Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq.
- U.S. Department of Labor FMLA Employer Guide
- 29 C.F.R. Part 825 — The Family and Medical Leave Act Regulations
This article is for informational purposes only and does not constitute legal advice. Employers should consult legal counsel regarding specific FMLA situations or employment decisions.