The FMLA provides job security to employees who must be absent from work because of their own illnesses, to care for family members who are ill, or to care for new babies.” Bachelder v. America West Airlines, Inc., 259 F.3d 1112, 1119 (9th Cir. 2001) (citing 29 U.S.C. § 2612). Through the FMLA, “Congress made it unlawful for an employer to `interfere with, restrain, or deny the exercise or 1338*1338 the attempt to exercise, any right provided’ by the Act.” Id. at 1122 (quoting 29 U.S.C. § 2615(a)(1)). Our cases have recognized two theories of recovery for violations of § 2615(a), “the retaliation or discrimination theory and the entitlement or interference theory.” Sanders v. City of Newport, 657 F.3d 772, 777 (9th Cir. 2011) (quoting Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955, 960 (10th Cir. 2002)). “While the FMLA does not clearly delineate these two claims with the labels `interference’ and `retaliation,’ those are the labels courts have used in describing an employee’s claims under the Act.” Id. (quoting Strickland v. Water Works & Sewer Bd. of Birmingham, 239 F.3d 1199, 1206 n.9 (11th Cir. 2001)). FMLA interference can take many forms including, for example, using FMLA leave as a negative factor in hiring, promotions, disciplinary actions, and no-fault attendance policies. See 29 C.F.R. § 825.220(c).
Employers have a duty to inform employees of their entitlements under the FMLA. Xin Liu v. Amway Corp., 347 F.3d 1125, 1134-35 (9th Cir. 2003); 29 C.F.R. § 825.300(d)-(e). However, the failure to provide notice does not result in a standalone cause of action; rather, “an employee must prove, as a threshold matter, that the employer violated § 2615 by interfering with, restraining, or denying his or her exercise of FMLA rights.” Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89, 122 S.Ct. 1155, 152 L.Ed.2d 167 (2002). The Act “provides no relief unless the employee has been prejudiced by the violation.” Id.
In Bachelder, we interpreted prohibited “interference” as “engaging in activity that tends to chill an employee’s freedom to exercise” FMLA rights. 259 F.3d at 1123 (internal quotation marks omitted). This interpretation was guided by our cases analyzing § 8(a)(1) of the National Labor Relations Act, which “largely mimics” § 2615’s interference language. Id. Thus, the inquiry for interference is whether the employer’s conduct makes an employee “less likely to exercise their FMLA leave rights [because] they can expect to be fired or otherwise disciplined for doing so.” Id. at 1124.
The FMLA creates two interrelated, substantive employee rights: first, the employee has a right to use a certain amount of leave for protected reasons, and second, the employee has a right to return to his or her job or an equivalent job after using protected leave. 29 U.S.C. §§ 2612(a), 2614(a).[7] Congress intended that these new entitlements would set “a minimum labor standard for leave,” in the tradition of statutes such as “the child labor laws, the minimum wage, Social Security, the safety and health laws, the pension and welfare benefit laws, and other labor laws that establish minimum standards for employment.” S.Rep. No. 103-3 at 4.
Implementing this objective, Congress made it unlawful for an employer to “interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided” by the Act. 29 U.S.C. § 2615(a)(1).[8] The regulations explain that this prohibition encompasses an employer’s consideration of an employee’s use of FMLA-covered leave in making adverse employment decisions:
[E]mployers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions; nor can FMLA leave be counted under “no fault” attendance policies.
29 C.F.R. § 825.220(c) (emphasis added). We find, for the following reasons, that this rule is a reasonable interpretation of 1123*1123 the statute’s prohibition on “interference with” and “restraint of” employee’s rights under the FMLA.[9]
Section 2615’s language of “interference with” and “restraint of” the exercise of the rights it guarantees to employees largely mimics that of § 8(a)(1) of the National Labor Relations Act. See 29 U.S.C. § 158(a)(1) (providing that it is an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed” by § 7 of the NLRA). Like the NLRA, the FMLA entitles employees to engage in particular activities — under the FMLA, taking leave from work for FMLA-qualifying reasons — that will be shielded from employer interference and restraint. Compare 29 U.S.C. § 157 (endowing employees with the rights “to self-organization, to form, join, or assist labor organizations, to bargain collectively …, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and … the right to refrain from any or all of such activities”) with 29 U.S.C. § 2612 (providing that eligible employees “shall be entitled to a total of 12 workweeks of leave during any 12-month period” for qualifying reasons).
Because the FMLA’s language so closely follows that of the NLRA, the courts’ interpretation of § 8(a)(1) of the NLRA helps to clarify the meaning of the statutory terms “interference” and “restraint.” Northcross v. Bd. of Educ. of Memphis City Schs., 412 U.S. 427, 428, 93 S.Ct. 2201, 37 L.Ed.2d 48 (1973) (per curiam) (similarity of statutory language is strong indication that statutes should be interpreted in the same manner). The Supreme Court has held that, for example, an employer’s award of preferential seniority rights to striker replacements interferes with employees’ rights under the NLRA, NLRB v. Erie Resistor Corp., 373 U.S. 221, 231, 83 S.Ct. 1139, 10 L.Ed.2d 308 (1963) (observing that the practice’s “destructive impact upon the strike and union activity cannot be doubted”), as does an employer’s threat to shut down its plant in retaliation if its employees should elect to form a union. NLRB v. Gissel Packing Co., 395 U.S. 575, 616-20, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969). Similarly, this circuit has held-giving just a few examples-that literature distributed by an employer indicating that job losses will be inevitable if employees vote to form a union “interferes” with employees’ rights, NLRB v. Four Winds Indus. Inc., 530 F.2d 75, 78-79 (9th Cir.1976), as does an employer’s surveillance of its employees meeting with a union organizer outside the workplace. California Acrylic Indus. Inc. v. NLRB, 150 F.3d 1095, 1099 (9th Cir.1998).
The basis for these holdings, as California Acrylic stated, is that “the courts have long recognized that employers violate section 8(a)(1)[‘s prohibition on interfering with or restraining employee rights] by engaging in activity that tends to chill an employee’s freedom to exercise his [ ] rights.” Id. For, “[a] protected activity acquires a precarious status if innocent employees can be discharged [for] 1124*1124 engaging in it[.] … It is the tendency of those discharges to weaken or destroy the [ ] right that is controlling.” NLRB v. Burnup & Sims, Inc., 379 U.S. 21, 23-24, 85 S.Ct. 171, 13 L.Ed.2d 1 (1964).
As a general matter, then, the established understanding at the time the FMLA was enacted was that employer actions that deter employees’ participation in protected activities constitute “interference” or “restraint” with the employees’ exercise of their rights. Under the FMLA as under the NLRA, attaching negative consequences to the exercise of protected rights surely “tends to chill” an employee’s willingness to exercise those rights: Employees are, understandably, less likely to exercise their FMLA leave rights if they can expect to be fired or otherwise disciplined for doing so. The Labor Department’s conclusion that employer use of “the taking of FMLA leave as a negative factor in employment actions,” 29 C.F.R. § 825.220(c), violates is the Act is therefore a reasonable one.
The pertinent regulation uses the term “discrimination” rather than “interfere” or “restrain” in introducing the “negative factor” prohibition. See 29 U.S.C. § 2615(a)(1); 29 C.F.R. § 825.220(c).[10] In the case before us and in similar cases, the issue is one of interference with the exercise of FMLA rights under § 2615(a)(1), not retaliation or discrimination: Bachelder’s claim does not fall under the “anti-retaliation” or “anti-discrimination” provision of § 2615(a)(2), which prohibits “discriminat[ion] against any individual for opposing any practice made unlawful by the subchapter” (emphasis added); nor does it fall under the anti-retaliation or anti-discrimination provision of § 2615(b), which prohibits discrimination against any individual for instituting or participating in FMLA proceedings or inquiries. By their plain meaning, the anti-retaliation or anti-discrimination provisions do not cover visiting negative consequences on an employee simply because he has used FMLA leave. Such action is, instead, covered under § 2615(a)(1), the provision governing “Interference [with the] Exercise of rights.” See Diaz v. Ft. Wayne Foundry Corp., 131 F.3d 711, 712 (7th Cir.1997) (holding that a claim by a former employee that he was denied the use of FMLA leave is a claim of a substantive right, covered under (a)(1), and not (a)(2); Rankin v. Seagate Techs., Inc., 246 F.3d 1145, 1148 (8th Cir.2001) (same)).
The regulation we apply in this case, 29 C.F.R. 825.220, implements all the parts of 29 U.S.C. § 2615. As noted, the particular provision of the regulations prohibiting the use of FMLA-protected leave as a negative factor in employment decisions, 29 C.F.R. 825.220(c), refers to “discrimination,” but actually pertains to the “interference with the exercise of rights” section of the statute, § 2615(a)(1), not the anti-retaliation or anti-discrimination sections, §§ 2615(a)(2) and (b). While the unfortunate intermixing of the two different statutory concepts is confusing, there is no doubt that 29 C.F.R. 825.220(c) 1125*1125 serves, at least in part, to implement the interference with the exercise of rights section of the statute. See 29 C.F.R. 825.220(b) (“Any violations of the Act or of these regulations constitute interfering with, restraining, or denying the exercise of rights provided by the Act.”).
Consequently, our analysis is fairly uncomplicated. Much as it should be obvious that the “FMLA is not implicated and does not protect an employee against disciplinary action based upon [ ] absences” if those absences are not taken for one of the reasons enumerated in the Act, Rankin, 246 F.3d at 1147 (8th Cir.2001); see also Marchisheck v. San Mateo County, 199 F.3d 1068 (9th Cir.1999) (determining that a terminated employee had no cause of action under the FMLA because the absences for which she was fired were not protected by the Act); Diaz 131 F.3d, at 713-14 (7th Cir.1997) (same), the FMLA is implicated and does protect an employee against disciplinary action based on her absences if those absences are taken for one of the Act’s enumerated reasons. See, e.g., Victorelli v. Shadyside Hosp., 128 F.3d 184, 190-91 (3d Cir.1997) (reversing grant of summary judgment for the employer where there was a triable issue whether the absence that triggered the plaintiff’s termination was covered by the FMLA); Rankin, 246 F.3d at 1148-49; Price v. City of Ft. Wayne, 117 F.3d 1022, 1023-27 (7th Cir.1997).
America West contends for quite a different approach, arguing that we should apply a McDonnell Douglas-style shifting burden-of-production analysis, familiar from anti-discrimination law, to determine whether the company illegally “retaliated” against Bachelder for using leave that was protected by the FMLA. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); see Reeves v. Sanderson Plumbing Products, 530 U.S. 133, 142-43, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (the McDonnell Douglas framework only affects the burden of production, not the burden of persuasion). The McDonnell Douglas approach is inapplicable here, however.
The regulation promulgated by the Department of Labor, 29 C.F.R. 825.220(c) plainly prohibits the use of FMLA-protected leave as a negative factor in an employment decision. In order to prevail on her claim, therefore, Bachelder need only prove by a preponderance of the evidence that her taking of FMLA-protected leave constituted a negative factor in the decision to terminate her. She can prove this claim, as one might any ordinary statutory claim, by using either direct or circumstantial evidence, or both. See e.g., Lambert v. Ackerly, 180 F.3d 997 (9th Cir.1999) (en banc) (using both direct and circumstantial evidence to prove prohibited act under the Fair Labor Standards Act); Davis Supermarkets, Inc. v. NLRB, 2 F.3d 1162 (D.C.Cir.1993) (using both direct and circumstantial evidence to prove unfair labor practice under NLRA); Reeves, 530 U.S. at 142-43, 120 S.Ct. 2097 (2000) (circumstantial evidence, including evidence that the employer’s explanation of its decision was false, can meet an employee’s burden of persuasion in a Title VII case). No scheme shifting the burden of production back and forth is required.[11]
In the case before us, there is direct, undisputed evidence of the employer’s motives: 1126*1126 America West told Bachelder when it fired her that it based its decision on her sixteen absences since the January 1996 corrective action discussion. If those absences were, in fact, covered by the Act, America West’s consideration of those absences as a “negative factor” in the firing decision violated the Act. The pivotal question in this case, then, is only “whether the plaintiff has established, by a preponderance of the evidence, that [s]he is entitled to the benefit [s]he claims.” Diaz, 131 F.3d at 713.