The Family Medical Leave Act (FMLA) of 1993 gives employees who work for companies with more than 50 employees (working within a 75-mile radius of each other) the right to take up to 12 weeks of unpaid time off during a 12-month period. You can take time off under the FMLA to give birth to a child, provide care for a loved one who is seriously ill, or a similar circumstance. If an employer refuses a qualifying employee leave under the FMLA, the employee may be entitled to sue for damages.
Since 2005, Attorney Kira Fonteneau has been a zealous advocate for employees who have been discriminated against and/or had their rights violated. Fonteneau has extensive knowledge of this area of law, and she has a successful track record having received numerous favorable rulings from both state and federal courts. Kira understands the frustration workers face when they are not granted the time off they deserve under the FMLA. She works closely with clients to ensure that they receive appropriate legal relief and that their employers are held fully accountable.
Employers can be in violation of the federal Family Medical Leave Act by denying leave to an employee who is qualified under the FMLA, violating the FMLA while an employee is on leave, or causing the employee trouble getting his/her job back when the leave is over.
Denial of Leave
Employers may wrongfully deny leave under the FMLA for a number of reasons. Some of the most common include:
- Unnecessary Notification Requirements: For most FMLA requests, you are required to give advanced notice. However, if you have an emergency situation, you are only required to give as much notice as is practical under the circumstances. Some employers violate the FMLA by requiring more notice than is necessary. Another way they may violate the Act is by requiring that you ask specifically for “family medical leave.” As long as your employer was reasonably informed that your leave is for pregnancy, care for a loved one, or a similar circumstance, it is their job to know that you are covered by the Family Medical Leave Act.
- Miscalculating an Employee's Eligibility for Time Off: Employees are entitled to unpaid family leave if they have been employed for a period of at least 12 months and have worked at least 1250 hours prior to the date the requested leave begins. Some employers wrongly believe that you must have worked at least 1250 hours prior to the date you request the leave, and deny the request based on this false calculation.
- Pressuring the Employee to Not Request Leave: Any type of pressure, either blatant or subtle, to discourage an employee from taking the leave they are eligible for under the Act is an FMLA violation. For example, an employer may “suggest” that you wait several months until things are not as busy, or they may imply that taking leave might adversely affect your chances of an upcoming promotion. You have the right to take leave without penalty, and it should not be counted against you when it comes to future promotions, raises, or bonuses you would otherwise be eligible for.
FMLA Violations While on Leave
After you have been granted family medical leave, you may run into problems due to the actions of your employer. For example, you have the right to keep your group health insurance benefits while you are on leave, as long as you keep paying your required portion of the premiums. However, since most employers grant the leave unpaid, the employee is usually responsible to pay the premiums directly (since there is no paycheck from which the employer can deduct payments). Your employer is required to give you advanced written notice of how and when to make payments, and they cannot cut off benefits unless your premium payment is more than 30 days late and they have given you plenty of advanced notice to make payment arrangements.
Trouble Returning to Work
One of the most common ways employers violate the FMLA is by making it difficult or impossible for you to return to work once your leave is over. An employer may not harass you, retaliate against you, discipline you, or terminate your employment for taking family medical leave. These are clear violations of the Act, but there are some more subtle ways employers may give you problems when your leave is over:
- Return-to-Work Delays: An employee only needs to provide two days of notice that he/she will return to work. As long as this notice is provided, the employer is required to give you your job back right away. Even if it is a slow period and/or it is not an ideal time for the employer to add more staff, they must still allow you to come back.
- Failure to Restore Benefits: An employee is only allowed to keep his/her group health insurance while away on family medical leave. The other group benefits must be reinstated when the employee returns from work. This must be done without delay and without having to go through any qualifying process.
- Reassigning the Employee to a New Position: When you return from your family medical leave, you are supposed to be given your old job back or a job that is nearly identical in pay, benefits, and job description. An employer may not, for example, place you in a job that is significantly different from your old job while giving your old job to someone else.
- Wrongly Classifying You as a “Key Employee”: There is a loophole under the FMLA that allows employers to deny reinstatement of a previous job to key employees, defined as salaried employees whose pay is in the top 10% of all company employees within a 75-mile radius. This can only be done if reinstating them to their previous position presents a “substantial and grievous” economic hardship to the employer. Employers will often try to broadly interpret this rule to wrongly include employees that do not meet the definition of a key employee.
FMLA Legal Actions
If you believe your rights as an employee have been violated under the Family Medical Leave Act, you can sue your employer privately. If you choose to file a lawsuit, it must be initiated within two years of the alleged violation, or within three years if the alleged violation was malicious.
If you need help deciding which legal path to choose, it is best to speak with a seasoned employment rights lawyer as soon as possible. Attorney Kira Fonteneau has several years of experience helping victims of FMLA violations receive justice, and she can review your options to help determine the right course of action. For a personalized consultation with Attorney Fonteneau, contact our office today at (404) 383-5720.