The Common Law
Family and Medical Leave Act options if FMLA leave is denied
The Family and Medical Leave Act makes it unlawful for any employer to interfere with, restrain, or deny the exercise of any right provided by this law. It is also unlawful for an employer to discharge or discriminate against any individual for opposing any practice or because of involvement in any proceeding related to FMLA. Employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions, or disciplinary actions; nor can FMLA leave be counted under "no fault" attendance policies.
FMLA is enforced by the Wage and Hour Division of the U.S. Department of Labor's Employment Standards Administration. This agency investigates complaints of violations. If violations cannot be satisfactorily resolved, the department may bring action in court to compel compliance. An eligible employee may bring a private civil action against an employer for violations. An employee is not required to file a complaint with the Wage and Hour Division prior to bringing such action.
Under the FMLA, an employee may bring two types of lawsuits: interference claims, in which the employee asserts that the employer denied or otherwise interfered with his substantive rights under the FMLA and retaliation/discrimination claims, in which the employee asserts that his employer retaliated or discriminated against him for exercising his rights under the FMLA. An employee can recover lost wages and benefits or, where no tangible loss has occurred, any other actual monetary losses.
This is the last column in a three-part series addressing FMLA issues. For anyone interested in learning more information about the FMLA, be sure to check out the U.S. Department of Labor's Web site (www.dol.gov/esa/whd/fmla).
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Marrs, Ellis & Hodge LLP, www.jmehlaw.com.
The material in this column is for informational purposes only. It does not constitute, nor is it a substitute for, legal advice. For advice on your specific facts and circumstances, consult a licensed attorney. You may wish to contact the Lawyer Referral Service of Central Texas, a non-profit public service of the Austin Bar Association, at 512-472-8303 or www.austinlrs.com.