Whether 29 U.S.C. § 2615(a)(1) prohibits an employer from retaliating against an employee who has exercised her rights under the FMLA

QUESTIONS PRESENTED The Family and Medical Leave Act makes it “unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right” that the Act provides in Subchapter I, which includes taking leave. 29 U.S.C. § 2615(a)(1). Seven circuit courts have held it is a violation of Section 2615(a)(1) to retaliate against an employee who exercised her FMLA rights. The Department of Labor shares that view of claims in 29 C.F.R. § 825.220(¢). The regulation states that “employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions.” The DOL regulation’s negative factor test is akin to a motivating factor causation standard, and eight circuit courts apply it. In the decision below affirming summary judgment for Walgreens, the Eleventh Circuit held that claims are governed by 29 U.S.C. § 2615(a)(2) rather than Section 2615(a)(1). Then, it concluded—based on the language of Section 2615(a)(2)— that a heightened but-for causation standard applied to claims, not the motivating or negative factor test. The questions presented are: 1. Whether 29 U.S.C. § 2615(a)(1) prohibits an employer from retaliating against an employee who has exercised her rights under the FMLA. 2. If29 U.S.C. § 2615(a)(1) does support a claim, whether an employee must show that her protected conduct was only a motivating or negative factor—rather than the but-for cause—of an adverse employment action.