FMLA Articles

Are employers getting better at FMLA administration?

The U.S. Department of Labor’s Wage and Hour Division (WHD), which enforces the Family and Medical Leave Act (FMLA), has indicated that in FY 2018, which ended September 30, 2018, it handled 1,011 FMLA cases, down from 1,165 the previous FY. Compared to the highest number of complaints, which was 3,795 in 1998, employers seem to be improving on their efforts to avoid FMLA issues. The 1,011 complaints from FY 2018 are broken down as follows: Termination: 422 Discrimination: 275 Refusal to grant FMLA leave: 184 Refusal to reinstate: 115 Failure to maintain benefits: 15 Back in 1999, the WHD secured $5,851,462 in back wages in relation to the FMLA. That was the biggest amount to date. For comparison, in FY 2018, it secured a measly(!) $1,761,138 in back wages. The FMLA doesn’t always garner big headlines or big claims. In a recent case, for example, an FMLA investigation resulted in an employee receiving $18,910 in lost wages and being reinstated to her former position. According to the claim, when the employee requested leave for an FMLA-qualifying health condition and provided documentation supporting that request, the employer failed to provide the employee with required notice of her eligibility, failed to notify the employee of her rights and responsibilities under the FMLA, and terminated her employment. All actions the WHD frowns upon. FMLA claims can, however, be quite costly, particularly if an employer’s actions are willful, resulting in double damages. The price tag can be well over $500,000 for those who act in bad faith. FMLA resolutions can include wages (front and back), employment benefits, other compensation, monetary loss the employee sustained (e.g., care costs), interest, liquidated damages, attorney’s fees, and other costs. Back pay includes all of the wages, salary, bonuses, commissions, and benefits (health insurance, 401k, paid time off, life insurance, etc.) lost because of FMLA interference or retaliation minus any amount the employee earned in the interim. If an employee is out of work for a year because of the situation, the employer could be on the hook for a year’s worth of the employee’s pay. Liquidated damages can double the costs, because they are typically calculated by multiplying an employee’s back pay by two. At least the FMLA does not allow for compensatory (e.g., emotional distress, physical distress, pain and suffering, medical bills), or punitive damages. If the decreasing number of FMLA claims the WHD is reporting is any indication, it does appear that employers are at least not getting involved in as many claims as they once did. This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc. The content of these news items, in whole or in part, MAY NOT be copied into any other uses without consulting the originator of the content.


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