2
The statutory source for this regulation is an area of confusion and dispute.
Compare Arban v. W. Publ’g Corp., 345 F.3d 390, 401 (6th Cir. 2003) (retaliation for
exercising FMLA rights arises under 29 U.S.C. § 2615(a)(2)), and Smith v. Diffee Ford-
Lincoln-Mercury, Inc., 298 F.3d 955, 960 (10th Cir. 2002) (same), and Loveland v.
Emp’rs Mut. Cas. Co., 674 F.3d 806, 810-11 (8th Cir. 2012) (same) with Strickland v.
Water Works & Sewer Bd., 239 F.3d 1199, 1206 (11th Cir. 2001) (retaliation for
exercising FMLA rights arises under 29 U.S.C. § 2615(a)(1) and (2) as well as 29 C.F.R.
§ 825.220(c)), and King v. Preferred Technical Grp., 166 F.3d 887, 891 (7th Cir. 1999)
(same), and Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 159-60 (1st Cir. 1998)
(same), and with Bachelder v. Am. W. Airlines, 259 F.3d 1112 (9th Cir. 2001) (retaliation
for exercising FMLA rights arises under 29 U.S.C. § 2615(a)(1) and 29 C.F.R.
§ 825.220(c)). We need not enter this fray. All courts agree that an employee can bring
a retaliation claim based on the exercise of FMLA rights. Furthermore, the WFLA
provides statutory authority for considering the terms of the federal implementing
regulations. RCW 49.78.410.
3
The WFLA specifically incorporates consideration of regulatory rules applicable
to the FMLA. Id.
11
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No. 35262-5-III
Espindola v. Apple King
promotions or disciplinary actions; nor can FMLA leave be counted under no fault
attendance policies.” Id.
The parties dispute the test applicable to the type of retaliation claimed by Ms.
Espindola. According to Ms. Espindola, we should apply a McDonnell Douglas-style
burden shifting analysis, under which the employee must first make out a prima facie case