What Penalties Occur if the FMLA Is Not Followed?
If an employee feels that his employer has violated his Family Medical Leave Act (FMLA) rights, the employee can file a complaint with the local office of the Wage and Hour Division of the United States Department of Labor. The employee is also entitled to file a private lawsuit. An employer that has violated an employee's FMLA rights may be required to rectify the employee's loss of employment and compensate the employee for any monetary losses.
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FMLA Poster Violation
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FMLA covered employers are required to place an FMLA poster in a location where it can be seen and read with ease by employees and pre-employment job applicants. Failure to comply with this provision can result in a fine that is imposed by the Department of Labor. As of 2011, FMLA statute 29 CFR 825.300 capped the assessment amount at $110 per violation.
Job Reinstatement
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When an employee returns from an FMLA leave, her employer must reinstate her to her pre-FMLA position or to a comparable position. If the employer fails to reinstate her as required, then the employer is in violation of the FMLA job-protection provision. The employer will be required to restore the employee to her pre-FMLA position. If the position is no longer available, the employer must restore her to a position that is equal in compensation, benefits, duties, skills and competencies. The employer may also be liable for any lost wages that were a result of the violation.
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Employee Benefits
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Employers are required to continue to administer and maintain the group health benefits of an employee who is on an FMLA leave. If an employer unlawfully cancels the employee's group health benefits, the employer must reinstate them, and the employer may be liable for any damages associated with the unlawful lack of health coverage. The employer's decision to cancel other types of employee benefits is dependent upon the policy that is in place for a non-FMLA leave of absence. Employers cannot cancel other types of benefits when an employee takes an FMLA leave, if other types of leave will not trigger a cancellation.
FMLA Monetary Award
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In cases where it is not simply wages or benefits that were denied, but the leave itself, the employer may be required to pay a monetary award. The penalty may be assessed at an amount that is equal to the employee's wages for the entitled leave-period. A case that is based on an employee being denied leave to attend to a seriously ill family member can result in a monetary award of up to 12 weeks of wages. In the case of an employee that was denied leave to attend to the serious health issues of a service member, the monetary award can be for up to 26 weeks of wages.
Additional Damages and Court Fees
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Additional damages equal to the sum of the monetary award may also be considered. A determination of whether there was willful intent on the part of the employer will be a factor in deciding if the additional damages amount will be assessed or rescinded. The employee also has the right to have her attorney and court fees reimbursed by the employer. The fees must be within a reasonable limit.
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