The Family and Medical Leave Act of 1993, or “FMLA”, is a law that was enacted to provide rights and protections with regard to medical leave for employees. Under the FMLA, required leave is unpaid and may continue for up to 12 weeks. During this time period, the employee's job is protected and he or she may not be terminated from their position. 

If an employer fails to fulfill their responsibilities under the FMLA, the affected employee may file a complaint. While some states may have adopted their own versions of the FMLA, employees in other states can only rely on the FMLA for any type of protected medical or family leave.

Is There a Time Period for Filing an FMLA Complaint?

If you are an employee who has a potential complaint against your employer under the FMLA, then you have two years from the date of the alleged violation to file a complaint. If, however, you can show that your employer acted willfully in violating the FMLA, you may have three years to file your complaint. 

It is generally recommended that you file a complaint as soon as possible, once you find out that a violation may have occurred. This can help ensure that you don’t miss any filing deadlines, so that your case can be heard and investigated, and an appropriate remedy issued for you.

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

An employee who believes their rights were violated under the FMLA has the choice of:

  1. Filing a complaint directly with the Secretary of Labor; or,
  2. Filing a private lawsuit pursuant to section 107 of the FMLA.

Both of these options can be complex and generally require the assistance of a lawyer. Whether filing with the Secretary of Labor, or filing a private lawsuit, it helps to compile the necessary support and documentation for a claim. This can include items that can potentially be used as evidence for your case, including:

  • Employment records and documents, such as those that show work attendance;
  • Any employment contracts or agreements between employer and employee, especially if these have provisions regarding family or medical leave;
  • Statements from witnesses, including co-workers, supervisors, human resources personnel, and other persons;
  • Other communications such as emails with the employer; and
  • Various other statements or items that can be used as evidence during the process

What Types of Complaints Can I File Under the FMLA?

Under the FMLA, you may file a complaint against your employer with the Department of Labor for employer violations based on various causes of action, which may include:

  • Taking disciplinary action or terminating an employee who has taken a valid leave under the FMLA; 
  • Engaging in retaliation against an employee for exercising their FMLA rights or for filing an FMLA complaint;
  • Terminating an employee during or at the conclusion of an FMLA leave;
  • Failing to properly notify the employee of their FMLA rights;
  • Disclosing an employee's confidential medical or family information;
  • Having benefits eliminated when returning from FMLA leave (or taking other similar actions); 
  • Changing an employee's role or position after returning to work following an FMLA leave; and
  • Failing to grant FMLA leave based on an assumption that the condition of the employee does not qualify as a serious condition.

How Do I File an FMLA Complaint with the Secretary of Labor?

You may file an FMLA complaint with the Secretary of Labor if you believe a violation has occurred. To do so, you should contact the nearest office of the Wage and Hour Division of the Employment Standards Administration, U.S. Department of Labor. You should record your complaint in writing and then present it in person, by letter, or by phone. 

At that point, the merits of your complaint will be reviewed. If the Department does decide to take action, on your case it will first try to solve your problem administratively by negotiating with the employer. If these negotiations are unsuccessful and if it believes the FMLA was in fact violated, then the Secretary may sue the employer on behalf of the employee. 

How Do I File a Private Lawsuit Under FMLA?

Alternatively, you may file a private lawsuit if you believe you employer was in violation under FMLA. This should be done promptly, as the FMLA is subject to a statute of limitations (i.e. filing deadline). This means a suit must be filed within two years after the last act that the employee believes was in violation of the FMLA, or three years if the violation was malicious or intentional.

What Remedies are Available Under the FMLA?

If the employer has indeed violated the FMLA, the employee may recover various losses such as:

  • Lost Wages;
  • Employment benefits and other compensation;
  • Actual monetary loss, including:
  • Some forms of equitable relief, including:
    • Resuming employment;
    • Promotion to a higher role; or
    • Reinstatement to their previous position.

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

The FMLA provides various protections and is an important law for employees. If you believe your rights have been violated, an experienced employment lawyer would be able to inform you of your rights under the FMLA. A lawyer in your area would also be able to represent you if you feel that it is necessary to bring a lawsuit against your employer for any FMLA violation.