Damages Under the Family Medical Leave Act (FMLA)

August 22, 2010

The United States Congress has declared that the purpose of the Family Medical Leave Act (FMLA), located in Chapter 28 of Title 29 of the U.S. Code , is "to balance the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity." Section 2601(b)(1).

To meet this goal, the FMLA is designed "to entitle employees to take reasonable leave for medical reasons, for the birth or adoption of a child, and for the care of a child, spouse, or parent who has a serious health condition." 29 U.S.C. Section 2601(b)(2).

An employer who violates the FMLA, may be required to compensate a damaged employee as follows:


  • Pay money damages equal to the amount of any wages, salary, employment benefits, or other compensation denied or lost to such employee by reason of the violation; or

  • In a case in which wages, salary, employment benefits, or other compensation have not been denied or lost to the employee, pay any actual monetary losses sustained by the employee as a direct result of the violation, such as the cost of providing care, up to a sum equal to 12 weeks of wages or salary for the employee;

  • Pay the interest on the amount described in the first bullet point calculated at the prevailing rate; and

  • Pay an additional amount as liquidated damages equal to the sum of the amount described in first bullet point and the interest described above, except that if an employer who has violated section 2615 of this title proves to the satisfaction of the court that the act or omission which violated section 2615 of this title was in good faith and that the employer had reasonable grounds for believing that the act or omission was not a violation of section 2615 of this title, such court may, in the discretion of the court, reduce the amount of the liability to the amount and interest, respectively; and

  • Provide such equitable relief as may be appropriate, including employment, reinstatement, and promotion.

  • (These elements are contained in Section 2617 of the Act)
The employee has a duty to mitigate damages, in other words, diligently seek new employment. Failure of the employee to do so may preclude an award of back pay for the period during which employment was not sought. See, e.g., Miller v. AT&T Corp., 250 F.3d 820, 838 (4th Cir. 2001).

The award available under the first bullet point is considered compensatory or actual damages. Actual damages differ significantly from the liquidated damages award under the FMLA. Instead of being actual damages, the liquidated damages are a penalty for failing to act in good faith and with reasonable grounds for believing that its act or ommission was not a violation of 29 U.S.C. Section 2615. Importantly, the burden is upon the employer to prove both elements.

What constitutes good faith and resonable grounds is beyond the scope of this blog. The variations and subleties are endless. However, at the very least the employer must inform the employee of his/her rights under the FMLA. "Federal law requires that the employer notify the employee of FMLA entitlements and employee obligations through its employee handbook and also provide the employee with written notice detailing the specific expectations and obligations of the employee and explaining the consequences of a failure to meet the obligations." Patterson v. Browning's Pharmacy & Healthcare, Inc., 961 So.2d 982 (5th DCA 2007), citing to 29 C.F.R. Section 825.301(a)(1), (b)(1). "The notice shall be given within a reasonable time after notice of the need for leave is given by the employee - within one or two business days if feasible." Patterson court, referring to Section 825.301(c).

FMLA issues are complex. An employee with concerns should seek legal assistance.

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Contact us at 866-785-GALE or by email to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals - the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

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