Discrimination topped FMLA issues in 2021

The U.S. Department of Labor’s Wage and Hour Division (WHD) enforces the federal FMLA. For the first time, its enforcement statistics indicate that the top complaint issue for 2021 was discrimination. Before then, the consistent biggest issue was termination. The issues for 2021 in descending order were as follows:

• Discrimination
• Termination
• Refusal to grant FMLA leave
• Refusal to restore to Equivalent position
• Failure to restore health benefits

Let’s look at the FMLA’s discrimination provisions:

• Employers are prohibited from discharging or in any other way discriminating against any person, whether or not an employee, for opposing or complaining about any unlawful practice under the FMLA.
• All persons, whether or not employers, are prohibited from discharging or in any other way discriminating against any person, whether or not an employee, because that person has —
  • Filed any charge, has instituted, or caused to be instituted, any proceeding under or related to the FMLA;
  • Given, or is about to give, any information in connection with an inquiry or proceeding relating to any right under the FMLA; or
  • Testified, or is about to testify, in any inquiry or proceeding relating to a right under the FMLA.
• Employers are prohibited from discriminating or retaliating against an employee or prospective employee for having exercised or attempted to exercise any FMLA right.

Back wages

The amount of back wages paid for FMLA violations in 2021 was $1,436,259. To put this into perspective, the amount has fluctuated somewhat over the last years.

• 2020: $1,168,898
• 2019: $1,915,512
• 2018: $1,761,138
• 2017: $1,481,952
• 2016: $1,801,162
• 2015: $1,960,257

Obviously, FMLA claims can be expensive. Be careful out there and be aware of the discrimination provisions.

Key to remember: Every now and then, employees’ need for leave changes. Sometimes, they may need more leave, and sometimes they may need less leave than they initially requested.