Can I Sue My Employer for Violating the Family and Medical Leave Act?

A leave of absence from work might be necessary to take care of yourself or your family during a difficult time. That’s why there are federal and state laws to protect workers who need time off.

But your employer might refuse to grant your leave. Or, you may face retaliation for requesting leave. In these situations, consider your legal options.

If you have a qualifying medical condition, are anticipating a new child, or have a family member suffering from a serious health condition, obstacles to taking leave can be stressful. An employment attorney can ensure that you are afforded the full protections of your FMLA rights when requesting a leave of absence.

What To Do After an FMLA Violation

This article will explain FMLA and the process to follow if an employer violates this law, including:

• What Is FMLA and What Does It Protect?
• Confirm You’re Covered by FMLA
• Types of FMLA Violations
• Request the Reason for Denial
• Watch for Signs of Retaliation
• Review Your Enforcement Options
• Seek Remedies Available Under FMLA

It’s a good idea to get legal advice as early in this process as possible. Regardless of whether you ultimately go to court, your lawyer can explain how the law specifically applies to your case.

What Is FMLA and What Does It Protect?

The Family and Medical Leave Act (FMLA) requires covered employers to provide their workers with 12 weeks of unpaid leave for certain life events.

Under this federal law, FMLA leave is available to eligible employees in any one-year period to tend to:

• Sick family members
• Serious personal illness
• Newborn babies
• New adoptions or foster care adoptions

Up to 12 weeks of FMLA leave may also be available for certain “qualifying exigencies” when a covered family member is on covered active military duty or is called to covered active duty. Military caregivers are given an extended 26-week period of time to care for service members with serious medical conditions.

Confirm You’re Covered by FMLA

If you get a denial letter saying you are ineligible for FMLA leave, start by verifying whether you qualify for benefits under FMLA or similar laws. Not all workers have coverage under FMLA. Yet, state laws can extend protections to more employers and employees.

Covered Employers

The FMLA applies to all state, local, and federal government employers. A private employer is covered under the FMLA if all the following apply:

• The employer has 50 or more employees.
• The employees are employed for 20 or more work weeks during the current or previous calendar year.

While the FMLA is a federal law, many states have enacted similar laws that provide greater protection for employees, including:

• The California Family Rights Act
• Maine Family Medical Leave Requirements Act
• Maryland’s Time to Care Act of 2022

Other states, including Minnesota, Oregon, Washington, Rhode Island, and Vermont, have lowered the employee threshold an employer must meet before becoming subject to FMLA claims.

Eligible Employees

Employees must also meet certain conditions to be eligible (or “covered”) under FMLA.

Eligible employees must have:

• Worked for a covered employer for at least a year
• Worked for 1,250 hours in the year before the start of the leave
• Worked at a site where 50 or more workers are employed by the employer within a 75-mile radius of that worksite

Types of FMLA Violations

An employer can violate FMLA in several ways, including:

• Interference: Denying eligible leave, discouraging employees from taking leave, or failing to reinstate to the same or equivalent position
• Retaliation: Firing, demoting, reducing hours, or otherwise punishing employees for requesting or taking FMLA leave
• Notice failures: Failing to post FMLA rights or provide required employee notices
• Benefits violations: Failing to maintain health insurance during leave or counting FMLA leave against employee in attendance policies

Request the Reason for Denial

If the violation in question is the denial of your leave, ask the employer to provide their reasoning in writing. Knowing the employer’s basis for denying your FMLA request can help you establish whether it is violating the law. It can also help you build a paper trail to document your case.

Some of the possible reasons for denial include:

• Ineligibility, as described above
• Incomplete documentation of the qualifying event or medical condition, such as lack of medical certification
• Procedural errors, such as the failure to provide advance notice for an expected leave
• Insufficient amount of available FMLA leave left during the one-year period

An employer may provide an illegitimate reason for denial. For example, your boss might say that your performance hasn’t been good enough lately, so they won’t let you take time off work to get surgery. FMLA eligibility doesn’t depend on your job performance.

Alternatively, the employer may claim they have a legitimate reason that doesn’t actually apply. For example, the employer might say your condition isn’t serious enough to qualify for a leave. Yet, you and your doctor believe it is and have provided proper certification.

Watch for Signs of Retaliation

Sometimes, the FMLA violation isn’t about an explicit denial but rather retaliation. Retaliation is negative activity after you take a legally protected action, such as asking for FMLA leave or reporting a violation.

Examples of FMLA retaliation can include:

• Giving a negative performance review or placing you on a performance improvement plan (PIP)
• Demoting you, including by significantly changing job responsibilities or your employment classification
• Reducing your pay or work hours
• Harassing you at work
• Making your working conditions unbearable to force you to quit

An employer might retaliate once you make your request or after you return to work. However, the FMLA protects employees against disciplinary actions and other consequences.

Can My Employer Fire Me for Taking FMLA Leave?

No. Firing you or threatening to terminate your employment for requesting leave is a form of unlawful retaliation. This protection exists even if your FMLA request was denied.

There is an exception if you’re unfit to return to work. For example, if a planned surgery leads to a disability that makes it impossible to work despite accommodations, you may not be able to return to work. Another federal law, the Americans with Disabilities Act (ADA), may also apply in this situation.

It is possible to be fired or laid off if the employer can prove the action was unrelated to your FMLA rights. If it’s hard to tell whether job loss is related to FMLA, it’s a good idea to consult with an attorney.

Example of an FMLA Violation Case

Let’s say that you have been working at a large company for five years. One day, you get a call from the hospital. The doctor informs you that your spouse collapsed and was taken to the emergency room. They will be discharged in a few days, but they will need to be monitored 24/7 for the next few weeks to make sure their serious condition is stable. Sadly, the health insurance benefits provided through your job aren’t enough to cover your spouse’s needs.

You’re the only person who can provide at-home care. You rush to your boss to request time off from work. Your employer tells you that times are tough and the company can’t afford to lose you even for a day.

“I’m really sorry, but I’ll just have to hire someone else if you can’t be here,” your boss threatens. “I can’t make any promises that we can give you a job when you’re back.”

You would recognize that the threat of firing you would be retaliatory. You also see that their reason for the denial is likely illegitimate. So, you’re wondering what to do about this illegal response.

Review Your Enforcement Options

Suing an employer isn’t necessarily the only path forward. You can decide whether to complain to a government agency or file a private lawsuit through the court system.

To enforce your FMLA rights, you can take the following steps:

• Address documentation issues: You may request a medical certification or resubmit fully completed forms to prove that you qualify for FMLA. Sometimes this step is enough to resolve the problem with an employer informally. But your employer can’t demand a copy of your confidential medical records.
• File a public agency complaint: The Wage and Hour Division of the U.S. Department of Labor (DOL) allows you to file a complaint in person, by mail, or by telephone. You should act promptly, because FMLA claims generally must be brought within two years of the last alleged violation, or within three years for a willful violation..
• File a lawsuit: An FMLA lawsuit must be filed within two years after the last employer action that you believe was in violation of the FMLA. The time is extended to three years if the employer’s violation was willful.

You may file a DOL complaint and a private lawsuit at the same time. But it’s important to know how these options interact. If the DOL decides to pursue litigation on your behalf following its investigation, you would lose your right to sue privately for those claims. If you already filed a lawsuit, the DOL‘s investigation wouldn’t recover double damages for the same claim.

Some states also have their own family leave laws with separate enforcement mechanisms. Consult an attorney to understand all your options.

When To Sue Vs. File a Complaint

The main differences between a lawsuit and a complaint concern your level of involvement and the potential remedies. You can evaluate which process is better based on your goals.

In an agency complaint, the DOL takes charge of the investigation for you. You would still need to provide information to support the investigation, but the process would require less involvement on your end. This process can be easier for workers who are already dealing with illnesses or family needs. Filing a complaint with the DOL is free.

In a private lawsuit, you would take on the burden of arguing your claim in civil court as a plaintiff. You’d need to file the initial court papers and attend court hearings. Private lawsuits typically take longer than agency complaints. They also incur upfront costs like filing fees and attorney fees. In exchange, you can keep more control over your case. For instance, you would gain the possibility of reaching a settlement sooner than a judgment.

A DOL complaint also limits the remedies available for a successful claim. The DOL generally focuses on repairing the direct damage to your job and lost payment. In contrast, a private lawsuit can allow you to seek compensation for other losses, such as liquidated damages.

Consulting a lawyer is a great idea regardless of whether you’re suing or filing a public agency complaint. They can help you evaluate your rights and options under state law.

Seek Remedies Available Under FMLA

If you win your FMLA case, you can recover damages in the form of:

• Job reinstatement to the same or equivalent position
• Back pay for prior lost wages and benefits
• Front pay, which includes future lost wages and benefits
• Liquidated damages for stress and other harms caused
• Court fees and attorney’s fees
• Other costs, such as caregiver expenses

To recover these types of relief, you must show the court that you incurred these damages as a result of your employer’s violation of the FMLA.

Talk to an Attorney If Your Employer Has Violated the FMLA

An experienced employment law attorney can make sure that your employee rights are protected against any violation of the FMLA. An employer must allow you to take time off from work for medical reasons without worrying about losing your job. Under federal law, you have a basis to file a lawsuit in response to an employer’s refusal to do so.