Filing a Complaint Under the Family and Medical Leave Act

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What is the Family and Medical Leave Act?

The Family and Medical Leave Act (FMLA) of 1993 was enacted to provide medical leave for employees. The required leave is unpaid and may continue for up to 12 weeks. During that time, the employee's job is protected and he or she may not be terminated. If an employer fails to live up to his responsibilities under the FMLA, an employee may have a complaint. While some states may have 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 a Complaint?

If you are an employee who has a potential complaint against your employer, 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. 

What Are the Steps to Filing a FMLA Complaint Against My Employer?

An employee who believes his or her rights under the FMLA have been violated has the choice of:

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

What Complaints Can I File Under the FMLA?

Under the FMLA, you may file a complaint against your employer with the Department of Labor for the following employer violations:

  1. Taking disciplinary action or terminating an employee for using FMLA
  2. Retaliating against the employee for using their FMLA rights
  3. Terminating an employee during or at the conclusion of the FMLA leave
  4. Failing to notify the employee of their FMLA rights
  5. Disclosing an employee's confidential medical information
  6. Having benefits eliminated when returning from FMLA leave
  7. Employer changes employee's role after returning to work following FMLA leave
  8. Failing to grant FMLA leave thinking condition of employee does not qualify as a serious condition

How Do I File a Complaint with the Secretary of Labor?

You may file a complaint with the Secretary of Labor. You should contact the nearest office of the Wage and Hour Division of the Employment Standards Administration, U.S. Department of Labor. 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, 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, the Secretary may sue the employer on behalf of the employee. 

How Do I File a Private Lawsuit Under FMLA?

You may file a private lawsuit if you believe you employer was in violation under FMLA. The FMLA is subject to a statute of limitations. 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.

What Remedies are Available?

If the employer has indeed violated the FMLA, the employee may recover:

Do I Need an Employment Lawyer?

An experienced employment lawyer would be able to inform you of your rights under the FMLA.  A lawyer 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.

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Last Modified: 07-24-2017 11:09 AM PDT

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