Can I Sue for FMLA Discrimination?

The Family and Medical Leave Act (FMLA) is a federal law that provides up to 12 weeks of protected unpaid leave for qualifying employees.

FMLA leave covers both the employee and their children, spouses and parents, so an employee can take time off to care for their family members in addition to utilizing the time for their own health needs.

Employers who have more than 50 employees are generally covered by FMLA law, along with elementary and secondary school employees and all employees of local, state and federal governmental agencies.

In order to utilize FMLA leave, employees must have worked for the company for 12 months (not necessarily contiguously), worked at least 1250 hours in the last 12 months and lastly the employer must have at least 50 employees in a 75-mile radius of the worksite.

FMLA guidelines protect employee jobs during FMLA leave, and they protect against retaliation following FMLA leave. Though restructuring could mean that an employee’s job is different upon the employee’s return, it must be similar to the previous job and provide the same hours and offer the same pay rate.

However, just because the FMLA is a federal law does not mean that employers understand how the FMLA guidelines work.

Sometimes employers deny FMLA requests because they don’t understand the rules, they dispute eligibility or they flat out refuse to follow the guidelines.

If you find that you are having a difficult time obtaining approval for FMLA leave, if you have been denied or if you are facing retaliation for taking FMLA leave, then you might be able to file a claim against your employer.

FMLA Damages

FMLA violations happen all the time. Whether they are the result of a misunderstanding or intentional doesn’t matter, as they are violations of the law. As an employee, you are entitled to see damages as a result of the violations.

Damages will vary from case to case depending on the nature of the violation. Common damages include front pay, back pay, liquidated damages and legal fees.

Front pay can be awarded in cases where employees have lost their jobs. Sometimes returning to work in the same position is not feasible after the FMLA violation and litigation, so the court will award compensation in the form of lost future wages for a period of time to cover the time spent on a future job search and to cover the time spent on litigation. Front pay is not common because it can be hard to claim, but it could be worth pursuing if you have a very specialized line of work.

Back pay is much more common. It covers the amount of pay that an employee has lost as a result of the FMLA violations. For example, if you lose your job because of FMLA violations in January and your case is decided in October, then you could be entitled to 10 months of back pay.

Liquidated damages are awarded by default unless an employer can prove that the FMLA violations were not made intentionally. They also include interest for the front and back pay.

Legal fees are awarded when you win your case. This is significant because having an attorney is one way to increase your chances of winning the case, but many people worry about out of pocket expenses. Knowing that legal fees can be awarded is important because some cases can last longer than others and legal fees can really add up.

Challenges When Filing a FMLA Suit

Filing a claim or lawsuit is difficult under the best of circumstances. In the case of an FMLA violation you are filing a claim against your employer.

There could be retaliation where your job is threatened, promotions or denied or pay is impacted as a result of that retaliation, and this is the last thing you need when you are in the middle of taking FMLA leave or coming back from it.

No matter your previous relationship with your employer, as soon as you file a claim or lawsuit the company will hire the best lawyers to fight the case.

It does not matter if they are guilty of the violation or not, they will fight either way. You need to be ready to fight for your rights so that you receive the maximum damages possible.

You should never try to fight a lawsuit alone. Having an employment lawyer working on the case will ensure that you have an expert working the case on your behalf. They understand the law and know what evidence you need to make the most of your case and win the maximum award possible.

How An Employment Lawyer Can Help

If you have been unfairly targeted because you took FMLA leave or because you have asked to take FMLA leave, 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.

No matter which option you choose, it would be a good idea to have an expert working with you to make sure you put forth a strong case.

You could be facing the loss of your job while taking FMLA leave or you could be denied a promotion upon your return. Having an attorney helping you to gather evidence and stay on top of due dates and hearings will keep you from additional stress in an already stressful situation.

Most employment attorneys will offer a free consultation so that you can find out whether or not you have a case and what your next step should be. An employment attorney will tell you whether filing a claim with the WHD or filing a lawsuit is your best course of action,

At that initial consultation you will also learn about legal fees. As we mentioned, legal fees will be awarded when you win your case so many employment attorneys work on a contingency basis, meaning they will not require a payment up front and you will only be required to pay if you win your case.

This makes hiring an employment lawyer a very smart move with very little risk. To learn more about how an employment attorney might be able to help you, fill out a free case evaluation.


Additional Resources

How to File an FMLA Claim

What Damages Are Available In an FMLA Claim