FMLA Violations - Remedies

It turns out I have some more free time today and I'd like to continue with more information on FMLA, this time regarding your remedies if your FMLA rights have been violated.

First, I'd like to pat myself on the back and point out that this blog has had 45 visitors to date, 44 from coast-to-coast and 1 from the UK (Scotland perhaps?). I'm a very up front person and when I feel wronged, I want to take my case to the public. I also want to do whatever possible to insure that no one else is subjected to the same indignities and hopefully I'll have the resources and energy to continue for many years to come. The Internet is a wonderful thing and there is a growing group of sites devoted to employee rights, usually started because one person said "it's wrong to treat me that way". I hope to become a small part of that network and advocate for the individual in their dealings with both the company and union.

Some very little part of me is actually grateful that the union and company refuse to take me seriously. I have a "cause" that I believe in and I haven't exercised my mind to this extent since I left the high tech world almost ten years ago. I now (tongue-in-cheek, of course, and only in my free time without interfering with any other obligations I might have :-) declare myself to be a union "deorganizor" and employee rights advocate. On to the important issues.

You feel that the company has violated your FMLA rights so what do you do? As with any Federal law or regulation, some Federal Agency or Department has oversight authority and you have the right to file a complaint. This is all new territory and I have exercised that right (not about FMLA) and have been pleasantly surprised so far. The Federal Government does listen to the citizens occasionally.

If you decide to file a FMLA complaint with DOL, they will investigate your complaint and eventually make one of three possible findings:

1. Your complaint has no merit and dismiss it.
2. Your complaint has merit and they will take it to binding arbitration.
3. Your complaint has merit and the DOL will file a Federal lawsuit on your behalf.

If you go to arbitration, or DOL files a lawsuit, and you prevail, you are entitled to certain damages such as back pay and reinstatement. The monetary damages will be doubled if the deciding body determines "wilfull" intent. Here's something interesting: DOL and the courts appear to take the position that the company, i.e. HR personnel, are the experts and it's their job to understand and apply the law. Therefore any violation is wilful. Tough standards!

The biggest advantages I see are complaining to the Federal Government only takes a single contact on your part and it costs you nothing. You are dealing with the Federal Government so it might not move as quickly as you'd like but we can agree that the wrath of the government is nothing to take lightly.

Another option is to contact a private attorney and possibly file a civil lawsuit, most likely in a US District Court. District Courts are a part of the Federal Trial System and you are entitled to trial by a jury of your "peers". My observation here is that if you go before a judge or arbiter, they will apply the law to your case and make a decision. A jury can "vote their heart" and unless the decision is totally outrageous, it's likely to stand appeal. Rest assured that a decision in your favor will most likely be appealed to the Circuit Appeals Court and even possibly to the US Supreme Court. Companies with the resources do not like to lose, not just because you might get some monetary award but because they like the way they do business and don't want to change.

Your attorney will not be free, i.e. FMLA/Labor attorneys don't typically take these cases on contingency as in the case of injury or malpractice. According to statistics, it costs a company around $80,000 to defend a civil FMLA case, win or lose! It goes up astronomically to appeal. I'll assume that the cost to bring a suit is similar. I don't have 80K so does that mean I can't sue?

FMLA (and other Federal Laws) allow a successful plaintiff's attorney to recover "reasonable" fees and costs, with the hourly rate based on the attorneys "expertise", in addition to any monetary damages the plaintiff might receive. The law also allows an attorney to claim a "premium" on their fees since the law recognizes that the plaintiff has an inherent disadvantage in these types of cases. As far as I can tell, what the attorney claims is pretty subjective and it might not be unusual for a plantiff to receive a $5,000 award and the plaintiff's attorney to receive $20,000. The definition of succesful also appears to be pretty loose. Let's say as a plaintiff, you claim five FMLA violations and the company is found guilty of only one violation. The attorney will claim entitlement to fees and cost because they were successful.

Let's look at the "facts of life"an attorney has to consider before taking you on as a client:

Do you get along or are you a "pain-in-the-arse"?
Does your claims have merit?
How much is it going to cost to pursue your claims?
How much do you stand to recover?
How much does your attorney stand to recover?
If you're successful, best case, can the company take the loss?

I'm sure I've omitted details but this gives you an idea of what to expect. Labor attorneys understand that few of us have the resources necessary to file a lawsuit and in my opinion, look at these cases as a "roll of the dice". How much will it cost them versus what the potential gains are. I am not suggesting that it's totally mercenary; you must have a case that both you and your attorney believe in, regardless of the basis for that belief.

Now that you've found an attorney and reached a fee agreement, what can you expect? You can come to a settlement agreement with the company at any time up to the point where the final court of jurisdiction makes their decision (and afterwards if you'll settle for less, the company sure ain't gonna offer you more).

You file your lawsuit and the company will ask for a summery judgment. All that means is that the company tells the court your claims have no merit or your claim is filed in the wrong court or cites some other legal reason why the judge should dismiss the lawsuit without it going to trial. If you have a reputable attorney, your claim will most likely "survive"summary judgment. What happens now? You wait! This is not a speedy process and it's likely to take two years to go to trial.

You go to trial and win. The jury awarded you some amount (as I said, up to almost 12 million in one case) but the company is going to try and not pay you a dime! They appeal to the Circuit Appeals Court and you wait again, perhaps another three years.

You win the appeal and now the company faces a choice. It's already cost them a lot of money so do they want to take a chance after losing twice or do they get out the checkbook and pay you either for the award you received or try to negotiate a settlement? Potentially, they could appeal to the Supreme Court. You might die but your claims live on. Do you want your rotten kids to benefit from the fruits of your hard labor (Just joking Kari, I love you)?

That's the best case senario. You could lose at any time so your choice of attorney's is very important. Do not proceed unless you're in it for the long haul and you (and your attorney) are convinced you have a strong case. Better to just file a complaint with the DOL and see what happens.

Once again, this is my opinion only and does not constitute legal advice. I like to think I'm a knowlegable lay person. I do a lot of research but I'm very far from infallable and if anyone ever disagrees with any thing I write, please take the time to disagree with me. I guarentee an open forum as long as you remain civil.