Claims Under the FMLA

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September 14, 2015


The Family and Medical Leave Act permits employees to make two basic types of claims: “interference” with rights or “entitlement” claims and “discrimination” claims.1 Interference claims can be based on any action by the employer that interferes with an employee’s right to take leave or exercise his or her rights under the FMLA, including:

  • Refusing to allow an employee to take FMLA leave;
  • Discouraging an employee from using FMLA leave;
  • “Manipulating” the employer’s responsibilities under the FMLA;
  • Failing to advise an employee of his/her rights to FMLA leave after the employee provides notice of a serious health condition; or
  • Failing to inform the employee as to whether his/her request for leave was approved.

Employers also are prohibited from discharging or in any other way discriminating or retaliating against any person for exercising or attempting to exercise his/her rights under the FMLA. For example, an employer cannot use the taking of leave as a negative factor in employment actions, including hiring, promotion or discipline.

In consequence, almost any violation of the FMLA or its regulations can potentially give rise to an interference claim. 29 C.F.R. §825.220(b). If proven, these can lead to liability on the part of an employer for lost compensation, liquidated damages and other kinds of relief, as discussed below.

The FMLA also prohibits retaliation against an employee who has filed a complaint alleging violations of the FMLA or testified in any proceeding under the Act.2 These kinds of claims tend to be less frequent. The bulk of FMLA claims allege some form of interference with FMLA rights by employers.

How an Employee May Assert a Claim

The FMLA prescribes two different ways in which an employee may assert a claim for violations. The first is by filing a lawsuit in state or federal court. 29 U.S.C. §2617(a). The second is by filing an administrative complaint with the United States Department of Labor. Id. at §2617(b).

Complaints filed in court are treated in the same manner as other kinds of civil litigation. Unlike claims for discrimination under Title VII or the Americans with Disabilities Act, there is no requirement that an employee first exhaust his/her remedies with an administrative agency.3 An employee is not required to file a charge of discrimination or complaint with the Equal Employment Opportunity Commission or the Department of Labor before filing a lawsuit in federal or state court. In addition, the time in which an employee may file a lawsuit extends to two years after the date of the violation.4 In cases alleging willful violations, the deadline can be extended to three years.5

Instead of choosing to litigate, an employee may file an administrative complaint with the U.S. Department of Labor.6 These complaints are investigated by the Department’s Wage and Hour Division in much the same way it investigates complaints by employees under the Fair
Labor Standards Act. In 2013, 1,634 FMLA complaints were filed with the DOL.7 The DOL, however, files comparatively few lawsuits on behalf of employees even though it is authorized to do so under the statute. In consequence, most developments under the FMLA occur in the context of federal court litigation. Decisions by the federal district courts and the federal courts of appeal can provide valuable insights into how the FMLA is currently being interpreted and applied.

1 29 U.S.C. §2615(a) 2 29 U.S.C. §2615(b). 3 See, e.g., Edwards v. Heatcraft, Inc., 2006 WL 3159945, *4 (M.D. Ga., Nov. 2, 2006) (“Unlike Title VII and the ADA, there are no administrative prerequisites that must be satisfied before filing an FMLA suit in federal court…”); Ogborn v. United Food and Commercial Workers Union, 2000 WL 1409855, *8 (N.D. Ill., Sept. 25, 2000) (“[T]he FMLA does not itself require exhaustion of any remedies, let alone exhaustion before the EEOC.”). 4 29 U.S.C. §2617(c)(1). 5 Id. at §2617(c)(2). 6 Id. at §2617(b)(1); 29 C.F.R. §825.400(a)(1).


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