When You Should Talk to an FMLA Lawyer

If you need an expert, here's when it makes sense to hire an employment lawyer.

By , J.D., UC Berkeley School of Law

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:

  • denies you time off
  • counts your FMLA leave against you
  • pressures you to return to work early, or
  • refuses to return you to your job when your leave is over.

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:

  • Discouraging you from taking time off. If your manager, HR representative, or supervisor responded to your request for FMLA leave by saying, "It's really not a good time right now," or "I can't promise you'll get your job back if you take time off," or "I'll have to consider your leave when I'm deciding who gets raises this year," you may have an FMLA claim. Employers can't try to talk employees out of using their rights under the FMLA, whether through subtle disapproval or outright threats.
  • Requiring too much notice. The FMLA requires you to give at least 30 days' notice of "foreseeable" leave (for example, if you have surgery planned well in advance). If you need leave for an unforeseeable reason (such as a premature birth or emergency medical treatment), you have to give only as much notice as is practical under the circumstances. Some employers try to require employees to give more notice than the law allows, or deny requests for leave that they should grant. (Learn more about your notice obligations under the FMLA.)
  • Requiring a particular type of notice. You don't have to mention the FMLA by name or ask for "family and medical leave" to be covered by the FMLA. If you say something to your manager, orally or in writing, that reasonably informs the company that you need time off for parenting or pregnancy (or another serious health condition or military family obligations), it's your employer's job to figure out that you are protected by the FMLA.
  • Miscounting your time worked. You are eligible for FMLA leave if you worked for your employer for 12 months, and for 1,250 hours in the year preceding your leave. Some employers count your hours worked as of the date you request leave, but this is incorrect: You must meet the hours worked requirement as of the date your leave will begin. If you request leave a month or more in advance, many hours will be added to your total by the time you take the leave.

Talk to a Lawyer If Your Employer Violates the FMLA During Your Leave

Here are some common ways employers violate employee rights while employees are out on FMLA leave:

  • Cutting off insurance. You have the right to keep your group health insurance benefits during your FMLA leave, as long as you keep paying your usual share of the premiums. Your employer must give you written notice, in advance, of how and when you must pay your premiums. (Because FMLA leave is unpaid, the employer's usual method of withholding premium payments from paychecks won't work.) Your employer may cut off your coverage only if you are more than 30 days late with your payment and you receive notice and an opportunity to correct the problem.
  • Pestering you to come back. Your employer may check in with you periodically to find out about your plans to return to work. But if your employer pressures you to return early, asks you to work during your leave, or won't leave you alone, you should talk to a lawyer.

Find an FMLA Attorney If You Have Trouble Getting Your Job Back

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:

  • Delaying your return to work. As long as you give notice two days in advance that you will return to work, your employer must put you back in your old job immediately. Postponing your return to work for the employer's convenience is not allowed under the law.
  • Reinstating you to a different position. The FMLA requires employers to put you back in the same position you held when you took leave, or in an equivalent position. An equivalent position must be nearly identical to your prior job, in duties, pay, benefits, shift assignments, work site, and other particulars. Your employer may not, for example, assign you to a different job because it hired a replacement for you while you were on leave. The FMLA gives you the right to take time off without penalty, and to be returned to your position when your leave is over.
  • Failing to restore all of your benefits. During your time off, your employer has to continue only your group health insurance benefits, not the rest of your benefits. However, when you return to work, all of your other benefits must be reinstated immediately, without a waiting period, medical examination, or other qualifying hurdles.
  • Counting your leave against you. Once you're back from FMLA leave, your company can't hold your time off against you. You can't be disciplined for taking FMLA leave in any way. This includes counting your leave against you in a no-fault attendance policy. And your employer can't count your FMLA leave against you when it's time to make decisions about raises, promotions, and so on. If you would have received a cost-of-living raise or automatic bonus when you were out on leave, you're entitled to that money.
  • Mistakenly denying reinstatement to you as a "key employee." The FMLA allows employers to deny reinstatement to key employees—salaried employees who are among the most well-paid 10% of the company's workforce, within 75 miles of where you work—but only if returning them to work would cause a "substantial and grievous" economic injury to the company. This exception is intended to be very narrow, but some employers try to argue that many employees are indispensable and impossible to reinstate (because they had to hire replacements).
    Your company must inform you, before your leave starts, if you're a key employee. If you receive a key employee notice, you should consider talking to a lawyer to find out whether you can legally be denied reinstatement and what to do about it.

What If You Have Trouble Doing Your Job or Your Employer Feels You Can't Do It?

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.

How Employment Lawyers Can Help Your Claim

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:

  • coach you on how to talk to your manager
  • write a letter to your employer on your behalf, or
  • file a lawsuit in court.

Will You Have to Pay for an Initial Consultation With a Lawyer?

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:

  • explain what happened
  • hear what the lawyer thinks of your case
  • hear how the lawyer thinks you should proceed, and
  • decide whether you want to hire the lawyer to represent you.

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.

How Do Lawyers Charge in FMLA Cases?

The two most common ways employment lawyers charge for their services are by charging:

  • contingency fees, and
  • hourly fees.

Paying Contingency Fees to a Lawyer for an FMLA Case

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.

When FMLA Lawyers Charge Hourly Fees

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.

How Are FMLA Attorney Fee Awards Handled?

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:

  • the hours your attorney reports having worked on your case
  • the attorney's hourly rate, or
  • both.

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.)

Updated November 21, 2023

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