Federal courts continue to hear cases over what are and are not materially adverse employment actions that can form the legal basis for a claim of retaliation by an employee who has engaged in a protected employment activity. Last month, the Fifth Circuit Court of Appeals added its input to this continuing debate in an unpublished decision involving a change of work schedules.
In Lushte v. State of Louisiana, the plaintiff alleged that she had been retaliated against by her employer after she was absent from work on protected leave under the Family and Medical Leave Act. Among the alleged retaliatory actions, the plaintiff claimed that her employer had moved her from a four-day, ten-hour schedule to a five-day, eight-hour schedule.
The Fifth Circuit affirmed dismissal of the claim, concluding that the four-day workweek was not an employment right, but rather constituted an alternative work schedule. Changes to the schedule, which also affected similarly situated employees who had not taken FMLA leave, could not be considered materially adverse employment actions under the FMLA.
This case might have been decided differently had the plaintiff been the only employee affected by the schedule change. However, the employer still could have argued that the overall workweek remained at 40 hours. Whether the loss of the three-day weekend would have been enough to constitute a materially adverse employment action will remain a question for future litigation.