Do you need to talk to a lawyer about taking medical or disability-related leave under the Family and Medical Leave Act (FMLA)? For most employees, the answer is "no." The FMLA, a federal law that requires employers to give eligible employees time off for health and caretaking reasons, is intended to be employee-friendly.
When you ask for time off that might qualify for FMLA leave, your employer is supposed to give you information about your rights and obligations under the law, provide the forms you will have to complete to take time off, and let you know the rules for maintaining your health insurance and returning to work.
But not every employer knows the rules—and not every employer follows them. For example, you should speak to an experienced employment lawyer to find out how to assert your rights if your employer:
Here are some of the ways employers violate the FMLA; if you're facing one of these situations, you should consider seeking some legal advice.
Did your employer deny you FMLA leave to which you were legally entitled? Your employer may try to come up with reasons to refuse to let you take leave, but most of them aren't valid. Here are a few ways an employer might break the law regarding your eligibility for leave:
Here are some common ways employers violate employee rights while employees are out on FMLA leave:
Under the FMLA, an employer may not count your FMLA leave against you or retaliate against you for taking advantage of your rights under the law. If your employer fires or disciplines you for taking FMLA leave, you should talk to a lawyer right away. Here are a handful of other common problems in the reinstatement process:
When your FMLA leave is over, your employer can ask you to provide medical documentation that you're able to return to work (called a "fitness-for-duty" certification). You must be able to perform the essential functions of the job (for instance, if a job exists to perform one function, such as taking photographs, you must be able to do it or your employer doesn't have to let you return to your job).
If you could return to your position but you need some sort of "accommodation" for your disability—a change that allows you to do your job—your employer must provide it, unless it would create an undue hardship for your employer. (This right comes from the Americans with Disabilities Act, not the FMLA.)
If you feel your employer is unfairly saying you can't do the job or isn't willing to work with you to accommodate your disability, talk to a lawyer.
If you think your employer has violated the FMLA, you should schedule a consultation with an experienced lawyer. An employment lawyer can review your situation, identify any legal problems in the way your employer treated you, and help you decide what to do next. For example, you might want the lawyer to:
The first check you write to a lawyer in your FMLA case will likely be for your initial consultation. The initial consultation is your first meeting with the lawyer, and it should allow you to do all of the following:
Some attorneys don't charge for an initial consultation, especially if it's brief. But many do charge, so you should ask about this when you call to make your appointment. Some lawyers charge a set rate no matter how long the meeting takes; others charge an hourly fee (which can be less than their usual hourly rate).
If you and the lawyer decide to work together, you should ask how the attorney's fees will be handled. Remember, fees are negotiable. Just like when you hire a plumber, accountant, or other professional service provider, you don't have to agree to the first price you hear.
The lawyer might or might not be willing to reduce the fee or agree to a different arrangement. But you have the right to ask and to shop around.
The two most common ways employment lawyers charge for their services are by charging:
In a contingency fee arrangement, your attorney is only paid if you win your case. Your attorney will take a percentage of what you win—whether your employer pays you to settle the dispute or a court awards you compensation.
Typically, the percentage increases as the attorney's time and work increases. For example, an attorney might take 25% of any settlement negotiated before a lawsuit is filed, 33% of any settlement negotiated after the filing of a lawsuit, and, once a trial date grows near, 40% of any amount negotiated or awarded by the court in a trial.
The significant benefit of a contingency fee arrangement is that you don't have to pay your attorney up front to take on your case. But you might have to pay costs (for example, court filing fees, copying expenses, and so on) as the case moves forward.
A contingency fee also gives your attorney a significant incentive to get as much money for your claims as possible. The more you get, the more your attorney is paid.
In an hourly fee arrangement, your attorney will keep track of all time worked on your case and bill you by the hour. The attorney should be able to give you an estimate of how many total hours your case will take.
You should have a written fee agreement that spells out the attorney's hourly fee and the hourly fee for anyone else who might work on your case (for example, a paralegal). Your fee arrangement should include monthly billing updates so you know how much time is being spent on your case and what you're paying for it.
If you're planning a lawsuit against your employer, you probably won't want an hourly fee arrangement. You could quickly spend more than your case is worth—with no guarantee of the outcome.
However, hourly fees can make sense if you need only limited legal work. For example, if your employer has agreed to give you a severance package, and you want an attorney to assess your claims and try to negotiate a better deal, paying by the hour might be cheaper than a contingency fee.
To protect employees, the FMLA allows the court to order your employer to pay your attorneys' fees if you win your lawsuit. For an attorney fee award, your lawyer will add up all hours worked on your case and then ask the court to award the attorney's usual hourly fee for those hours. Your employer might dispute things like:
But at some point, the court will order your employer to pay you the amount it determines is fair.
Your fee agreement with your attorney will determine how the fee award is handled. Depending on your fee agreement, your lawyer might not get the actual amount of the attorney fee the court awards. For example, a contingency fee deal might call for any court-awarded attorney's fees to be added to the amount you won in the case. Your attorney would then receive the contracted percentage of the total award amount—perhaps 33% or 40%—and the resulting amount could be more than the attorney's fees awarded by the court.
(Learn more about how much you can win in an FMLA case.)
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