Unpaid leave refers to an unpaid leave of absence, or a period of time in which an employee must leave work temporarily. The employee intends to return to their position once the need for leave has been met. These reasons generally include family leave, medical leave, maternity leave, and bereavement leave. The exact length of time that a leave absence is allowed to last depends on each individual employer, as well as each state’s laws.

In most cases, leave of absence is governed by the Family and Medical Leave Act, commonly referred to as the “FMLA.” The FMLA stipulates that qualified employers are to allow up to two to twelve weeks of unpaid leave to qualified employees. Additionally, the employee on leave is to return to their position, and maintain health insurance benefits during their leave, as if they were actively working. During a leave of absence, the employee may not be terminated except under very specific circumstances.

As the Act is a federal law, it preempts state laws, even if those laws conflict with each other. Meaning, employees in states that offer little to no family or medical leave could still have some protection under the FMLA. Some states have laws that provide more than the federal law, but most states do not provide more leave than what is required by the federal law.

What Are Some Examples of Disputes Involving Unpaid Leave?

Disputes regarding an employee taking medical leave, whether paid or unpaid, generally arise when an employer disagrees with the employee’s absence. This may be due to the fact that the employer does not believe that the employee actually qualifies for the protections provided by the FMLA. Some specific examples of disputes and legal issues involving medical or family leave include:

  • Disputes regarding unpaid leave vs. the use of vacation time;
  • Disputes over the length, purpose, or terms of an unpaid leave of absence;
  • The employer fires the employee while they are on a valid leave of absence;
  • Forcing an employee to take unpaid leave in such a way that it violates company policies, state laws, or both;
  • Failing to pay an employee during leave if they are legally entitled to paid leave; and
  • Discrimination regarding the availability of unpaid leave, such as making leave unavailable to an otherwise qualified employee due to their belonging to a protected class.

Other examples include fraudulent filing, and accounting violations. Fraudulent filing may occur when an employee is faking a medical condition in order to fraudulently obtain medical leave, whether paid or unpaid. Accounting violations could include tax or record keeping fraud.

Unpaid leave disputes also arise in connection with employment contracts. Simply put, an employment contract is an agreement between employer and employee that provides the terms of employment. Employment contracts generally address such issues as job title, salary and benefits, and vacation and sick leave.

Some employers may use an employment contract to specify the amount of unpaid leave that is available to an employee. Failure of either party to adhere to the terms of the employment contract could result in a legal claim.

What If I Have a Dispute Regarding Unpaid Leave? Are There Any Legal Remedies?

If you have a dispute regarding unpaid medical or family leave, there are certain steps you will likely need to follow before you may take legal action against your employer. Generally, this includes:

  • First notifying your supervisor or your company’s human resources department and exhausting all administrative remedies;
  • Initiating an agency investigation by reporting the infraction to either the Equal Employment Opportunity Commission (“EEOC”) or the Wage and Hour Division; and
  • Filing a private civil lawsuit if an agency investigation does not provide sufficient solutions.

Pending the results of an agency investigation, an employer may be required to rewrite their existing medical leave policies in order to conform to federal and state leave laws. Doing so would also assist them in avoiding future infractions. Violated employees may be entitled to a damages award if they have suffered lost wages or benefits as a result of their employer’s violation. Additionally, they may receive a damages award if they were wrongfully terminated from their position while on medical or family leave.

It is important to remember that legal remedies may vary from state to state, depending on each state’s laws regarding family and medical leave. The facts of each specific case also play a part when determining legal remedies for disputes involving unpaid leave of absence.

Do I Need an Attorney for Unpaid Leave Disputes?

A skilled and knowledgeable employment law attorney can help you understand your state’s laws on update leave, as well as your rights under those laws. If you have an employment contract, the attorney can also review that contract in an effort to determine whether you have a case against your employer for wrongful denial of unpaid family or medical leave. Additionally, an experienced employment law attorney can represent you in court as needed.