Remedies for FMLA Discrimination


The Family and Medical Leave Act was created to offer qualifying employees time off to deal with personal healthcare issues or to care for a parent, child or spouse. Under those guidelines, employees are protected from facing discrimination or retaliation as a result of taking FMLA leave.

Your employer is not allowed to stop you from taking FMLA leave, nor can you be penalized in any way for asking to take advantage of it or from using it if you are a qualifying employee.

If you believe that you have been the victim of FMLA discrimination or retaliation, then you may be able to receive compensation.

The Family and Medical Leave Act

FMLA leave provides up to 12 weeks of unpaid, protected leave to qualifying employees to deal with the employee’s own health issue or those of a parent, spouse or child.

Qualifying employees are those who have worked for at least 12 months for their employer. The 12-month period does not have to be consecutive, so seasonal workers can apply, but the employee must have worked a minimum of 1250 hours in the past 12 months. Additionally, the company must have a minimum of 50 employees within 75 miles of the employee’s worksite in order for the employee to qualify.

Employers are generally covered by FMLA guidelines if they have 50 or more employees. All local, state and federal governmental agencies are also covered, as well as all elementary and secondary school employees.

The FMLA guidelines cover situations like time spent in the hospital, care for chronic conditions, recovery from surgery, dealing with issues pertaining to childbirth or even time to bond with a newborn or newly adopted child or foster child.

An employee might need to have hip replacement surgery, in which case he will ask for FMLA leave to cover additional time off for recovery and rehabilitation beyond his sick leave and vacation time.

You might elect to use FMLA leave when your parent is diagnosed with a chronic condition like cancer that requires frequent trips to the doctor and treatment. If you do not have enough sick leave or vacation time to cover those absences, then FMLA leave will fill in the gaps.

While it is not paid leave, it does protect you from losing your job while you are away. Your employer is not allowed to prevent you from taking FMLA leave if you qualify for it, nor can you be terminated for taking leave or asking to use it. You cannot be demoted, have your hours cut or have your pay rate lowered because of FMLA leave. These are considered discrimination and retaliation and they are prohibited by FMLA guidelines.

If you experience discrimination or retaliation from your employer for taking FMLA leave, then you could be entitled to compensation.


Some of the common forms of remedies for FMLA violations include lost wages, out of pocket costs, legal fees and reinstatement to your former position if you lost your job. The specific types of remedies available to you are dependent upon the nature of the FMLA violation.

Lost wages are a common remedy in FMLA complaints. They can include both back pay and front pay. If you lose your job then you are entitled to back pay, which would include pay from the time you were terminated through the end of the case. In some cases front pay will also be awarded, though this is relatively rare because front pay is an award based on the amount of money you will lose while looking for another job after being terminated.

Other remedies include out of pocket costs and liquidated damages, which includes interest for any lost wages you are owed as well as any other unspecified damages resulting from your case. Finally, if you win your case you will be awarded legal fees to cover the cost of hiring an employment lawyer to help with your case.

In some cases, employees are able to have their employment reinstated in addition to monetary damages. This is a good outcome when an employee’s relationship with the employer has not soured as a result of the lawsuit. For obvious reasons it is not always possible for an employee to return to his position.

In order to determine which remedies might be available in your FMLA discrimination case, you should speak with an employment lawyer to find out your best course of action.

How An Employment Lawyer Can Help

If you believe that you are the victim of a FMLA violation, either while taking FMLA leave or after your return to work, or if you have been fired from your job because of FMLA leave, then you have two courses of action available to you. You can either file a claim against your employer with the Department of Labor’s Wage and Hour Division (WHD), or you can file a private lawsuit.

You should not try to fight your employer alone. No matter which path you take, having an expert working on your behalf is a good idea. While hiring an employment attorney does not guarantee that you will win your case, the odds of a favorable outcome increase considerably.

An employment attorney will work with you to determine your best course of action, help you to gather evidence and witnesses and ensure that you receive the maximum damages available. Having an advocate working on your behalf will greatly reduce your stress in an already stressful situation.

Most employment law attorneys will meet with you for a free or reduced cost consultation to determine whether you have a case and what your next steps should be. From there you will be able to discuss legal fees.

As we mentioned, legal fees can be recovered as damages when you win your case, so many employment law attorneys will work on a contingency basis so that you do not pay upfront, and you will only pay if you win your case. Since legal fees are covered when you win, there is very low risk to hiring an attorney for your case.

To learn more about how an employment lawyer can help you, fill out a free case evaluation.

Additional Resources