How to File an FMLA Complaint Against an Employer?

The Family and Medical Leave Act of 1993 (FMLA) is a federal labor law which was passed in order to ensure that every employee is able to balance the demands of their employment with the demands and needs of their personal life. The FMLA permits employees in certain situations to take up to 12 weeks unpaid leave while maintaining their job security. This helps the employee preserve their healthcare benefits while still actively working.

It is important to note, however, that the FMLA does not apply to every employer and employee. The FMLA only applies to an employer who is classified under one of the following categories:

• An employer in the private sector which has 50 or more employees for twenty-plus work weeks in the current or prior calendar work year;
• A public agency, including federal, state, or local government agencies, regardless of the number of employees that work at the agency; or
• A private or public elementary or secondary school, regardless of the number of employees that the school employs.

An employer who is covered by the FMLA is required to comply with its provisions, including offering mandatory unpaid leave to workers that are eligible and request time off for one or more reasons, including:

• For the birth and care of a newborn child;
• To care for a member of the employee’s immediate family, such as a child, parent, or spouse who has a serious health or medical condition;
• If an employee has adopted or taken a child in for foster care;
• For military-related purposes, such as deployment or an illness or injury stemming from serving in the military; or
• To take medical leave for themselves if the individual is unable to work due to a serious health or medical condition.

An employee who is covered under the FMLA is permitted to take up to 12 weeks off per year for any of the previously discussed reasons. In order to be eligible for family or medical leave pursuant to the FMLA, the employee must: 

• Have worked for their employer at least 12 months;
• Have worked at least 1,250 hours during those 12 months; and
• Work for an employer which employs 50 or more workers within 75 miles of the office.

Is There a Time Period for Filing an FMLA Complaint?

Yes, there is a time period requirement for filing an FMLA complaint, called a statute of limitations. This applies whether the employee is filing a complaint with the Secretary of Labor or filing a private lawsuit against their employer. 

The statute of limitations for filing a claim with the Secretary of Labor under the FMLA is not specific. The U.S. Department of Labor provides that the complaint should be filed at any local office of the Wage and Hour Division within a reasonable time after the employee discovers their FMLA rights have been violated.

In contrast, an employee filing a private lawsuit in state or federal court for an FMLA violation has 2 years from the date of the last action in which the employee believes the employer violated the FMLA. If the employee believes the employer willfully violated the FMLA, the employee has 3 years to file a lawsuit.

It is important to note that it is up to the court to determine whether or not the FMLA violation was willful or not. In addition, if a state employee is filing a private action, their rights may be limited. An attorney is best equipped to provide guidance on these issues.

What are the Steps for Filing an FMLA Complaint against My Employer?

As noted above, an employee may file an FMLA complaint with their local Wage and Hour Decision office. They may also file a private action in the state or federal court with jurisdiction over these matters. 

In both cases, the employee should have certain documents to use as evidence supporting their complaint, which may include, but is not limited to:

• Timesheets;
• Employment contracts or agreements;
• Statements and contact information from witnesses;
• Emails;
• Text messages;
• General correspondence; and
• Any other documents to materials that the employee can use to support their complaint.

What Types of Complaints can I File Under the FMLA?

There are numerous types of complaints which can be filed against an employer under the FMLA, including complaints for:

• Retaliating, terminating, or taking another form of disciplinary action against an employee who requested and has taken a valid leave of absence in accordance with FMLA standards;
• Retaliating, terminating, or taking some other kind of disciplinary action towards an employee for exercising their legal right under the FMLA by filing a complaint or private lawsuit against the employer for violating the FMLA;
• Failure to provide proper notice to an employee regarding their FMLA rights;
• Refusing to allow an employee to take time off;
• Forcing an employee to return to work before their leave period was over;
• Refusing to reinstate the employee to their old job or changing their position after they return to work;
• Eliminating an employee’s benefits once the leave period is over; and
• Disclosing an employee’s confidential family or medical information to others.

How Do I File a Private Lawsuit Under FMLA?

As previously noted, an employee must file a private lawsuit under the FMLA within 2 or 3 years of the last incident, depending on the circumstances. The process to sue an employer for FMLA violations includes:

• Determining which federal or state court in the employee’s jurisdiction oversees FMLA matters;
• Filing the FMLA claim with the appropriate court;
• Serving copies of the Summons and Complaint on the employer;
• Filing the proof of service certificate with the court where the claim was filed;
• The employer is required to respond to the complaint and send copies of their response to the employee; and
• Then the process will proceed with the regular stages of a trial, including pre-trial conferences, discovery requests, trial preparation, etc.

What Remedies are Available Under the FMLA?

There are different types of remedies an employee may receive under the FMLA. These may include, but are not limited to:

• Reinstatement to the employee’s former position;
• The leave allowed under the FMLA;
• Back pay, or the amount of wages and benefits that the employer may be liable for if they illegally terminated the employee. For example, if an employee returned from leave and was immediately fired due to taking valid time off, they may be eligible to receive the amount of wages and benefits they lost during the time period for which they were fired prior to bringing the lawsuit;
• Liquidated damages, which are equal to the amount of back and/or future pay that an employee actually lost, plus interest; and
• Attorney’s fees and court costs.

How has COVID-19 Affected Rights Under the FMLA?

COVID-19 has had an effect on employee’s rights under the FMLA. It is important to note that an employee cannot take leave under the FMLA in order to avoid contracting COVID-19.

Individuals are able to take time off pursuant to the FMLA for COVID-19 related issues that make it impossible for them to work. In addition, the Family First Coronavirus Act (FFCRA) was created to address issues which arise during the COVID-19 pandemic. 

It requires an employer to provide paid sick leave for an employee if they are absent from work due to a COVID-19 related issue. However, similar to the FMLA, it has restrictions which are best discussed with an attorney.

COVID-19 leave was considered FMLA leave during a portion of 2020 pursuant to the Emergency FMLA provisions of the FFCRA. However, those mandatory leave entitlements expired at the end of 2020.

It is important to note that employers that voluntarily provided FFCRA benefits through March 21, 2021 may receive a federal tax credit. These benefits may continue to be extended as the pandemic continues. Consult with an attorney for the most up-to-date information.

Do I Need an Employment Lawyer if I Have an FMLA Claim?

Yes, it is essential to have the help of an employment lawyer with any FMLA claims you may have. Your lawyer will be able to explain the FMLA complaint and lawsuit process, discuss your rights and protections, and determine if you have a viable claim. In addition, your lawyer will represent you in court and negotiate on your behalf for a settlement, if possible.