Some victims of FMLA violations just want their jobs back. The Department of Labor has taken an offensive stance to combat Family Medical Leave Act violations. in addition to having the right to file a private lawsuit to challenge violations of the FMLA, employees have more leverage to seek and negotiate for relief in addition to monetary damages. The DOL (Department of Labor) is increasing the number of cases it handles on its own, and thus sending a clear message to employers that the FMLA offers a broad range of remedies which the private employee as well the DOL may seek.
The effort to increase FMLA enforcement is an attempt to follow suit with the Equal Employment Opportunity Commission (EEOC). Just last year in 2015 the EEOC initiated over 42 percent of discrimination investigations to set a record high. The EEOC found cause to believe a violation of the law occured in 79 percent of these wage and hour lawsuits, and on average, $8,900 in back wages was recovered for victims of discrimination. The Department of Labor plans to begin investigating more aggressively to improve overall enforcement of FMLA.
FMLA enforcement should focus on three main objectives:
- Reinstatement of employees terminated for taking FMLA leave
- Recovering back pay wages for FMLA violations
- Preventing FMLA violations
Getting Your Job Back After FMLA Retaliation
In a recent FMLA case, a worker at the La Mirage Hotel and Casino in Las Vegas, Nevada was fired after exercising his right to medical leave. The former banquet server was reinstated as the investigation was pending, because an employee cannot be fired for taking approved FMLA leave.
The Department of Labor concluded reinstatement was not sufficient, and this was not near enough a “fair bargain” for the victim of wrongful termination (retaliation) when taking FMLA leave. Ultimately the employee received back pay for the year he did not work following his termination, full credit for his retirement plan for the hours worked, and health care. The backpay and damages that were finally paid by La Mirage to the employee amounted to about $74,000.
HR Professionals as “Employers” Under FMLA
The new enforcement initiative also underscores a whole new set of issues which should be of significant concern to employers. Specifically, HR professionals can be held personally liable for violations in FMLA enforcement (Graziadio v. Culinary Institute of America, Second Court of Appeals). Personal liability may attach to HR professionals who have significant power over employees, including the power to both hire and fire employees, set the rate of pay, control and supervise work, and maintain employee records.
The Family & Medical Leave Act is a regulation that allows full-time employees of companies with more than 50 employees to take various types of medical related leave such as sick leave for serious medical conditions and surgeries, maternity leave for care of a newborn or newly adopted child, family medical care such as taking care of parents, children, and spouse, and/or pregnancy leave when working becomes a health risk.
Do you need help recovering back wages or fighting wrongful termination after taking approved FMLA leave?
There’s a possibility you could get your job back. The best thing you can do is speak to an experienced employment rights attorney immediately to recover unpaid wages and damages. Contact the employee rights attorneys at Wenzel Fenton Cabassa, P.A., for a free confidential consultation today.
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