The Penalty for Violation of the FMLA Law

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You cannot receive FMLA leave for a common illness, such as a cold or the flu.
You cannot receive FMLA leave for a common illness, such as a cold or the flu. (Image: sick woman image by forca from Fotolia.com)

The Family Medical Leave Act of 1993 protects employees from being terminated or demoted in the event that the employee or a family member becomes ill. The FMLA is administered and enforced by the United States Department of Labor's Employment Standards Administration, Wage and Hour Division. If an employer violates the FMLA law, it may suffer consequences.

FMLA Situations

The employee must work for an FMLA-covered employer, must have worked for the employer for at least 12 months and for at least 1,250 hours out of the last 12 months, and he must work at a location in the Unites States (or a U.S. territory where at least 50 employees are employed in a 75-mile radius). If the employee fits those criteria, he may receive 12 weeks of unpaid leave for the birth of his child or to care for his newborn child, if he is adopting a child, if he is taking care of his spouse, parent, or child with a serious medical condition, if the employee has a serious medical condition or for certain situations resulting from the fact that the employee's spouse, parent or child is an active duty or reserve service member, and if his leave is in result of a contingency operation, the Department of Labor reports.

Employer Posting Requirement and Penalty

Employers are required to post a notice explaining FMLA on their premises. The notice must be approved by the Department of Labor. If an employer does not post an approved notice on its premises, it may incur a fine of up to $110 per offense.

FMLA Employer Responsibilities and Penalty

While the employee is on his FMLA leave, his employer must maintain his health benefits, provided he had health benefits through his employer. When the employee returns to work, he must have the same position as he did prior to his FMLA leave, or an equivalent position with equivalent pay. If the employer does not grant these FMLA rights to the employee, the employee may bring civil suit to the employer and the Department of Labor may take legal action.

Other Employer Violations and Penalty

It is unlawful for an employer to violate, interfere with or deny FMLA rights. The Wage and Hour Division investigates complaints. Violations may result in the individual employee bringing civil suit to the employer. The employee need not file a complaint with the Wage and Hour Division before filing a civil suit. If the matter cannot be resolved, the Department may take legal action to compel compliance.

Key Employee Exception

If the employee who needs to take leave is considered a "key" employee, the employee may be denied the restoration of her position if leave occurs. The Department of Labor defines "key" employees as those whose leave, or restoration after leave, will cause "substantial and grievous economic injury" to a company's operations. If an employee receives written notice that she is a key employee, she cannot claim an FMLA violation if she is, in fact, key to the company's operations.

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