How to Sue for a FMLA Violation

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1Developing Your Case

2Initiating Your Lawsuit

3Heading to Trial

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The federal Family and Medical Leave Act (FMLA) gives you the right to take time off work for health reasons or catering responsibilities without impacting your job. If your employer refuses your legitimate FMLA leave request, or terminates your employment as a result of your request, you may be able to sue your employer for monetary damages or reinstatement. Unlike other federal laws, if you want to sue for an FMLA violation you don't have to file a charge with a federal agency first. However, this doesn't mean that your initial impulse should be to file a lawsuit the moment you have difficulties with your employer. You always should keep filing a lawsuit as your last resort after all else has failed.

Steps

Part 1

Part 1 of 3:

Developing Your Case

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   Gather information. Before you even contemplate suing for an FMLA violation, you should assess your eligibility under the law.

   • Only employers with 50 or more employees are subject to the FMLA. These employees may work in different locations, however, as long as at least 50 employees work within 75 miles of your workplace.
   • For you to be eligible for leave under FMLA, you must have worked for your employer for at least a year and clocked at least 1,250 hours during that time.
   • You also must have requested FMLA leave for an eligible reason. If your employer asserted that the reason for your leave request wasn't covered by FMLA, you may have to do some additional research to determine whether your employer's assessment is correct.
   • Keep in mind that many employers run afoul of the FMLA because they fail to recognize serious health conditions and deny employees coverage as a result.
   • The U.S. Department of Labor (DOL) provides an employee's guide to the FMLA which may answer most of your questions. You can download the guide online at http://www.dol.gov/whd/fmla/employeeguide.pdf.
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   Talk to your employer. While you should send your employer a written letter regarding your dispute, you also should arrange to talk to someone face-to-face about what has happened and the fact that you consider it a violation of FMLA.

   • Maintain a professional tone in your letter, and stick to the facts of your dispute. If you have any medical reports or doctor's statements that support your request, you may want to attach these to your letter.
   • State that you believe you are entitled to leave under FMLA, and that your employer's decision or actions violate your rights under the law.
   • Request an appointment when you can sit down and discuss the matter with your employer with minimal disruptions. Offer to bring any information or documentation your employer needs to reassess the situation.
3. 
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   Consult an attorney. If you are unable to resolve the situation with your employer by yourself, an experienced employment attorney can help you enforce your rights under the FMLA.

   • The DOL has partnered with the American Bar Association to create an attorney referral system for employees with FMLA complaints, and this can be a good place to begin your attorney search. You can access the system at https://www.americanbar.org/groups/lawyer_referral/resources/lawyer-referral-directory/.
   • Keep in mind that many employment attorneys are willing to work on contingency, meaning you won't have any out-of-pocket expenses to pursue your lawsuit. Additionally, if you win your case, the court must award reasonable attorney's fees in addition to your award.
   • You should try to interview at least three attorneys before you make your final choice. Most attorneys who specialize in FMLA violations at least give free initial consultations, so you can introduce the attorney to your dispute and learn more about the process and your options.
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   Send a demand letter. Before your attorney files a lawsuit, his or her first step probably will be to send a letter to your employer demanding that your rights under the FMLA are recognized.

   • An attorney's demand letter may go farther toward resolving your situation than you were able to accomplish on your own. Most employers are wary of getting involved in lawsuits, and an attorney signals that you are serious about your claim and will go to court if necessary to enforce your rights.
   • Although not required to enforce your rights under the FMLA, your attorney also may recommend filing a complaint with the DOL's Wage and Hour Division.
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   Work on your complaint. If the demand letter doesn't lead to satisfactory results, your attorney will start gathering information with you so you can file a lawsuit against your employer.

   • Under the FMLA, you may sue in any federal or state court that has jurisdiction over your employer – typically the court in the county or district where your workplace is located.
   • Your attorney may discuss this matter with you, but ultimately he or she will know whether it's better for you to file your lawsuit in state or federal court under the circumstances.
   • Generally, your complaint will introduce you and your employer to the court, then list the facts of your case in the form of allegations that together constitute a violation of the FMLA.
   • Your complaint also includes a calculation of the amount of money and any other relief, such as reinstatement of your employment, to which you believe you are entitled as a result of your employer's FMLA violation.
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Part 2

Part 2 of 3:

Initiating Your Lawsuit

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   File your complaint. To start the litigation process, you and your attorney must take your complaint and any other required paperwork to the clerk of the court where you want your lawsuit to be heard.

   • The clerk will stamp your complaint with the date it was filed and give it a unique case number. This number will be used on all other documents filed with the court.
   • The clerk also assigns your case to a judge and issues a summons for your employer to appear and respond to the complaint by a deadline included on the summons.
   • If your attorney is working on contingency, the filing fees – which typically are several hundred dollars – will be added to your costs and deducted from any settlement you receive along with your attorney's fees. If you go to trial and win, your employer will be required to pay those costs in addition to any monetary award.
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   Have your employer served. Once your complaint is filed, you must follow the proper legal method of delivering, or serving, the complaint on your employer so he or she has notice that you've filed the lawsuit.

   • Federal court complaints typically are hand-delivered by a U.S. Marshal, while state court complaints are served by a sheriff's deputy.
   • Although most courts require hand delivery of complaints, some allow service using certified mail with returned receipt requested.
   • After service is complete, the individual who delivered your documents must complete a proof of service document and file it with the court.
   • You only have a certain amount of time to serve your employer after you've filed your complaint – 120 days in federal court and a similar period of time in state courts.
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   Receive your employer's answer. Depending on the court, your employer has typically between 20 and 30 days after being served to respond to your lawsuit.

   • In most cases your employer will file an answer denying most if not all of your allegations, and perhaps also asserting various defenses. Given that you've been unable to resolve the matter through other means, this should be expected.
   • If your employer misses the deadline and fails to respond to your lawsuit, you may be eligible to win a default judgment. This is not a common outcome in FMLA cases, however, particularly if your employer has fought you up to this point.
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   Respond to any initial motions. If your employer files a motion to dismiss, you must pass this hurdle before you can continue litigating your case.

   • The hearing for a motion to dismiss can become almost like a miniature trial, but without a jury.
   • To successfully fend off a motion to dismiss, you must be able to prove to the judge's satisfaction that your complaint has merit, that you have evidence of the allegations in your complaint, and that those allegations add up to a violation of the FMLA.
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Part 3

Part 3 of 3:

Heading to Trial

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   Consider any settlement offers. Throughout litigation, even from the moment your employer receives your complaint, you may receive an offer to settle your case.

   • Your attorney must present all settlement offers to you, and will give you his or her advice on whether you should accept the offer – but keep in mind the final decision is always yours.
   • Since the terms of settlements typically are confidential, and don't involve anyone admitting fault, your employer probably will be keen on settling your case.
   • This will be particularly true if your case is revealed as particularly strong over the course of litigation, or if some extremely damaging evidence or testimony is discovered. Often you can use this to your advantage to improve a settlement offer through negotiation.
   • Keep in mind that even if a settlement offer is significantly lower than the amount you've asked for in your complaint, a settlement has advantages of certainty and immediacy, since you're never guaranteed to win everything you ask for in a lawsuit.
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   Conduct discovery. Through the discovery process, you and your employer will exchange information and evidence related to your claim so you can better prepare your case as well as gain an understanding of your employer's defenses.

   • the discovery process typically begins with written discovery, which consists of interrogatories, requests for admissions, and requests for production. The written responses to these questions help you and your attorney build your case and identify potential witnesses.
   • Through requests for production, you can get copies of your employer's written policies, internal communications regarding your FMLA request and leave, and other personnel records. Your employer also may request medical records from you and other information related to your leave request.
   • The other part of discovery is taking depositions. Depositions are interviews with parties and witnesses regarding various aspects of the case. The person deposed is under oath, and the interview is recorded by a court reporter who will produce a transcript of the deposition for later reference.
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   Attend any pretrial hearings or conferences. As litigation progresses, the judge may call the parties to court for hearings or to discuss the status of the case.

   • The judge typically will hold at least one scheduling conference, if not several – depending on how long pretrial litigation lasts. In these conferences, the judge meets with the attorneys to check in on the status of the case and set deadlines for the phases of litigation that will keep the case moving and keep either party from stalling.
   • Either you or your employer may at various times during the pretrial stage need to file motions asking the court to order various things, such as to compel discovery if the other party is dragging its feet in producing a response to a reasonable request.
   • Often if the motion deals with something procedural, the judge will make a decision without holding a hearing in open court to discuss the matter.
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   Participate in mediation. Some courts require litigants to at least attempt to resolve their dispute through mediation before a trial will be scheduled.

   • In mediation, a neutral third party – either someone assigned by the court or chosen from a list of court-approved mediators – facilitates negotiations between you and your employer in the hopes of arriving at a mutually agreeable settlement of the dispute.
   • The discussions that happen during mediation, as well as the terms of any settlement produced, are confidential. If you are unable to reach a settlement, nothing said during mediation can be used at trial.
   • If you and your employer reach a settlement through mediation, the mediator will draw up an agreement for both of you to review with your attorneys and sign.
   • Keep in mind that although you're expected to participate in mediation with good faith, there is no requirement that you reach a settlement, and you don't have to accept any settlement offered by your employer.
   • If you and your employer are unable to resolve your dispute through mediation, your attorney will meet with you to discuss trial strategy and prepare for trial.
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