The most damaging FMLA violations are those that punish an employee for exercising their rights.
1. Retaliation for FMLA Leave
This is arguably the most serious violation. Retaliation occurs when an employer takes an adverse employment action against an employee because they requested or used FMLA leave.
- Examples: Termination, demotion, reduction in pay or hours, denial of a promotion, negative performance reviews based on leave usage, or counting FMLA absences against the employee under a "no-fault" attendance policy.
- Grave Consequences: The employee can sue for back pay (lost wages and benefits) and often liquidated damages, which can double the amount of the back pay award unless the employer proves they acted in good faith. Furthermore, the employer often must cover the employee's attorneys' fees and court costs, making successful retaliation claims extremely expensive.
2. Interference with FMLA Rights
Interference occurs when an employer takes action that discourages an employee from using their entitled leave or denies them a right under the FMLA.
- Examples: Failing to promptly notify an employee of their FMLA eligibility and responsibilities, demanding more medical information than legally permitted, or discouraging leave by making comments about how taking leave will hurt their career or place a burden on coworkers.
- Grave Consequences: This can lead to legal action resulting in the same damages as retaliation, including double damages and attorney's fees. It also signals a systemic compliance failure that could trigger Department of Labor (DOL) scrutiny.
3. Failure to Restore the Employee to the Same or Equivalent Position
A core protection of the FMLA is that an eligible employee must be restored to their same job or an equivalent job upon returning from leave. An equivalent job must have the same pay, benefits, and terms/conditions of employment.
- Examples: Returning an employee to a less desirable shift, a lower-paying role, or one with significantly fewer responsibilities, even if the title is similar.
- Grave Consequences: Liability for back pay and benefits from the date of the unlawful placement until the employee is correctly restored, plus potential liquidated damages.
4. Ineligible Termination
Firing an employee while they are on approved FMLA leave, or terminating them under the guise of "restructuring" when the real reason is the leave itself.
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Grave Consequences: This can bring a lawsuit seeking double damages, reinstatement, and payment of the employee's legal bills. However, an employer can terminate an employee on FMLA leave for legitimate business reasons like a reduction in force (RIF), provided the decision is not a pretext to retaliate against the employee for taking leave. Consult with legal counsel.