Are you considering taking legal action against your employer for violating the Family and Medical Leave Act (FMLA)? If you requested or took time off for your disability or health condition or to take care of a family member, you may have a strong legal claim against your employer if your employer (or former employer) did one of the following:
- refused to let you take time off
- fired or disciplined you for requesting leave
- forced you to come back to work before your leave was through, or
- refused to return you to your former position when you finished taking time off.
If you’re thinking about filing a lawsuit, you should talk to a lawyer. A lawyer can evaluate your situation, assess whether the facts and the law are on your side, and explain your chances of winning in court. To make an informed decision about whether to sue, you’ll also need to know what you can get if you win an FMLA lawsuit. Below, we explain the money damages, fees, and other remedies a court may order in an FMLA case.
Reinstatement and Time Off for FMLA Violations
The FMLA gives a court the right to order “injunctive relief.” This means the judge can order your employer not only to pay you money (see below), but also to take or stop taking a particular action. In FMLA lawsuits, there are two actions employees often ask the court to order: "reinstatement" and time off.
- Reinstatement. If your employer denied you your old job back, fired you because you took or asked for leave, or returned you to a job that is not equivalent to the one you held before you took FMLA leave, you can ask for reinstatement. To reinstate you under the FMLA, your employer must put you back in the job you held before you took leave or an equivalent position—one that is virtually identical to your former job in every important way, including pay, job duties, benefits, and authority.
- Leave. If your employer violated the FMLA by denying your request for leave or letting you take less time off than you were legally entitled to take, you can ask the court to order your employer to let you take your FMLA leave.
Money Damages for FMLA Violations
If you win your FMLA lawsuit, you can also ask the court to order your employer to pay you money damages. Generally, damages are intended to "make you whole" from the harm you suffered as a result of your employer breaking the law. The FMLA authorizes courts to award any or all of the following types of damages:
- Back pay. An award of back pay is intended to pay you back the wages and benefits you lost as a result of your employer’s actions. For example, if you were illegally fired for requesting FMLA leave, the court could order your employer to pay you the salary and cost of benefits you would have received had you not been fired. If you were demoted illegally, the court could order your employer to pay you the difference between what you earned and what you would have earned if you had kept your original position. Back pay is intended to cover the period from the date your employer violated the law (for example, by firing you) until the date judgment is issued in your favor in your lawsuit.
- Other out-of-pocket costs. If you had to spend money as a result of your employer’s illegal actions, the court can order your employer to reimburse you. For example, let’s say your employer illegally postponed your FMLA leave for surgery for three months. Your spouse was available to care for you when you should have been granted leave, but was deployed in the armed forces by the time you had your surgery. If you had to pay a caregiver to take care of you because of your employer’s delay, you could ask the court to order your employer to pay you back.
- Front pay. Front pay is intended to reimburse you for the money you will lose going forward because of your employer’s actions. If the court orders your employer to reinstate you immediately, you won’t receive front pay (you’ll have your old job back at your former rate of pay, so you have no damages going forward). However, if the court doesn’t order reinstatement and you don’t yet have a new job (despite your best efforts), the court might award you front pay for a period of time.
- Liquidated damages. The FMLA authorizes the court to order your employer to pay you liquidated damages equaling the total amount of your back pay and front pay awards. Liquidated damages are intended to pay for harm that is difficult to put a dollar amount on. (Other laws allow courts to award something similar: damages for pain and suffering or emotional distress.) The FMLA doesn’t allow these types of damages, but the liquidated damages provision is intended to capture costs that are harder to quantify, such as the stress you may have suffered as a result of having your leave request denied. You will get liquidated damages unless your employer can prove that it acted in good faith when it violated your rights.
- Attorney fees and court costs. The court can also order your employer to pay your attorney fees for bringing the lawsuit, as well as the costs of suing, such as filing fees, deposition costs, and more.
Damages Available Under Other Laws
Under the FMLA, the court is authorized to order only the damages listed above. However, if you sue under a state law that allows employees to take time off, or you sue for certain types of wrongful termination, you may be able to get damages for your emotional distress: the pain, suffering, and anguish you went through as a result of your employer’s illegal actions. Punitive damages may also be available: damages that are intended to punish an employer who acts really badly. Your lawyer can explain which legal theories might apply to your case and what damages may be available if you win.