This is not intended to scare you but rather inform you of the potential penalties your company can face if you fall out of compliance.
The Federal Family and Medical Leave ACT (FMLA) 29 CFR part 825, became effective on August 5, 1993.
Since that date, the Department of Labor (DOL) has answered thousands of compliance questions from employers and employees. The Wage and Hour Division has processed over 2,000 employee complaints. Based on their experience it has allowed them to identify the most common violations.
The Cost of Legal Action
U.S. federal courts saw a 26.3% increase in the number of FMLA lawsuits filed in 20141. If a claim becomes a lawsuit, there are fines, legal costs, time away from work to deal with the claim(s), as well as how it affects the overall work environment and employment relationships. Plus, managers and supervisors may potentially be sued directly and held personally liable for paying damages2.
What’s more, lawsuits can be lengthy and time consuming to resolve, and even if the employee loses, there are costs involved for legal defense, etc. The average cost to defend a FMLA lawsuit is $78,000, regardless of the outcome—and employees who successfully sued for wrongful termination based on FMLA absence received on average between $87,500 – $450,000 in damages3.
The following list will alert employers to personnel actions, which will likely cause employees to file complaints with the DOL. The pertinent section of the regulations is cited for your reference.
- Failure to notify employee of FMLA rights. (825.300-.301)
- Failure to notify employee that leave counted towards 12-week FMLA entitlement. (825.208(b)(1)-(b)(2)
- Counting FMLA leave against the firm’s absentee policy for disciplinary purposes. (825.220(c)
- Taking disciplinary action against employee for using FMLA. (825.220(c))
- Failure to grant leave to provide physical care or psychological comfort to a seriously ill parent. (825.116(a))
- Failure to reinstate an employee to same or equivalent position.
- Terminating an employee during or at the conclusion of FMLA leave. (825.216)
- Failure to grant FMLA leave because of a misunderstanding of what qualifies as a “serious health condition”. (825.114)
- Failure to request medical certification in writing and not giving employee at least 15 days to obtain medical certification. (825.305)
- Failure to handle questions about the validity of a medical certification by guidelines set forth in FMLA regulations. (825.307)
- US Department of Labor Wage and Hour Division, 2014 Fiscal Year Statistics
- Schultz v. Health & Hospice Corp. (N.D. Ill., 2002).
- Allen Compagnon, Compliance Officer, pacresbenefits.com, Presagia, How Well Do you Understand the Intricacies of Compliance, 2011