Often, particularly if you are facing an emergency, bringing a lawyer in to help you negotiate is the best way to guarantee your rights under the law. If you have already been denied leave or disciplined for using it, a lawyer can help you assess your options and decide how best to move forward.
Some possibilities include trying to negotiate a settlement of your claims, filing an administrative complaint with the Department of Labor, or filing a lawsuit.
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Meet the Editors. Learn some common ways employers violate the FMLA. Not every reason for leave is covered, either.
Employees may take leave only for: the birth, adoption, or foster care placement of a child the employee's own serious health condition a family member's serious health condition qualifying exigencies arising out of a family member's military deployment , or a family member's serious injury or illness arising from military service.
Here are some examples: Failing to recognize serious health conditions. Although the FMLA doesn't cover minor ailments, some employers violate the law by refusing to allow employees to take leave for qualifying conditions. For example, although a cold generally won't qualify as a serious health condition, an employee who develops complications, such as bronchitis or pneumonia, is likely covered by the FMLA.
Disciplining employees for excessive absences. Some employers have "no-fault" absence policies, which count every absence for any reason against the employee.
Once an employee reaches a certain number of absences, discipline ensues. However, an employer may not count FMLA-qualified absences against an employee. This sometimes comes up because an employer doesn't ask for more information about the reasons why an employee is absent, and so misses the fact that the employee is eligible for FMLA leave. Employers violate these provisions by, for example: Requiring employees to give too much notice.
However, employees are still eligible for FMLA leave as long as they give the notice required by law. Failing to inform employees of their rights and obligations. If the employer doesn't give an employee the information required by law, it can't hold the employee to those obligations. Failing to recognize employee notice. An employee doesn't have to invoke the FMLA to give notice: As long as the employee provides enough information to let the employer know that leave is needed for a covered reason, the employee has given sufficient notice to trigger the employer's obligations.
Leave Management Problems Employees are entitled to 12 weeks of leave per year for most qualifying conditions; employees who need time off to care for a family member with a service-related injury or illness may be entitled to 26 weeks of leave in a single month period. Some common legal violations here include: Failing to continue health insurance. Some employers are simply ignorant of this requirement; some cut off employee insurance prematurely.
For example, if an employee is more than 30 days late in making a premium payment, the employer must give the employee written notice and an additional 15 days to make the payment before cutting off coverage. If you're a victim of job discrimination or harassment, you can file a lawsuit.
If the discrimination violates federal law, you must first file a charge with the EEOC. This does not apply to cases of unequal pay between men and women. You may decide to sue if the EEOC cannot help you. In either case, look for an attorney who specializes in employment law.
You can check with:. American Bar Association. National Employment Lawyers Association. Only employers with a certain number of employees are subject to EEOC laws. The number of employees changes depending on the type of employer and the kind of discrimination alleged.
Businesses, state, and local governments must follow most EEOC laws if they have 15 or more employees. The Americans with Disabilities Act ADA — which prohibits discrimination against workers with disabilities and mandates reasonable accommodations. EEOC laws protect employees and job applicants from retaliation. If you feel that you have been wrongfully fired from a job or let go from an employment situation, you may wish to learn more about your state's wrongful discharge laws.
If you are an employer seeking information about legal termination of employees, you may wish to contact both the Equal Employment Opportunity Commission EEOC and your State Labor Office to ensure you do not violate any federal or state labor laws. You may wish to consult with a licensed attorney. This unpaid leave is guaranteed by law and is available to workers at companies with 50 or more employees.
FMLA fact sheets can help you understand your rights and coverage. Employers with FMLA eligible employees have specific rights and responsibilities under the law. After the FMLA litigation is over, one of the remedies the employee can pursue is getting his or her job back.
The FMLA is unique in that it allows employees to double their back and front pay by awarding liquidated damages. Unless the employer shows that its FMLA violations were made in good faith and based on reasonable grounds, liquidated damages will be awarded. Put another way, liquidated damages will be granted by default, unless the employer can prove it made an honest mistake when it violated the FMLA. In the case of LaMonaca, Tread was unable to show that it acted in good faith or that its actions were based on reasonable grounds.
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