Under the Family and Medical Leave Act, eligible employees who work for employers with 50 or more employees within 75 miles of each other are entitled to take up to 12 weeks off from work to treat their serious health condition or the condition of a close family member. To be eligible, an employee must have worked for the employer for at least 12 months and for at least 1,250 hours during the year preceding the date of their leave. When your period of leave is over, you have the right to be returned to your job or to a comparable position with the same pay, duties, and opportunities for advancement. If your employer violates your rights under the FMLA, you might have the right to pursue compensation. Here is some information from the employment lawyers at Swartz Swidler about damages and whether they are capped.
Back pay is the most common type of compensation awarded in FMLA lawsuits. There isn’t a cap on back pay. It includes all of the benefits, wages, bonuses, and commissions you lost because of your employer’s retaliation against you for taking leave under the FMLA or interfering with your FMLA rights. Back pay also includes the raises, shift differentials, overtime, and interest you would have earned if you hadn’t lost your job. However, back pay stops if you gain employment and work at a job in which you earn the same pay as your previous job. If you get a new job at which you make less pay, your back pay will include the difference between what you earn at your new job and what you did at your former position from the time you were fired until your case is finished.
Front pay includes the wages, benefits, bonuses, and commissions you would have earned if you hadn’t lost your job at some point in the future. For example, if you lost your job and haven’t been able to find a new one, you would receive back pay. If it is determined that you likely won’t find a similar job for a year, you might also recover front pay for a year’s worth of missed work.
Liquidated Damages Plus Interest
Liquidated damages are potentially recoverable in an FMLA case. These damages are capped at double your back and front pay. However, they aren’t available in every case. If your employer can prove that they took the action they did in good faith and reasonably believed they were not violating the FMLA, liquidated damages won’t be available. The employer will have the burden to establish that they acted in good faith. If they don’t, liquidated damages will be available.
While you might not want to return to work for your employer, job reinstatement might be an available remedy. However, many employees who file FMLA lawsuits against their former employers don’t want to return to their former jobs and seek front pay instead.
Attorney’s Fees and Legal Costs
If you win your FMLA lawsuit, you can also ask for an award of attorney’s fees and legal costs. The attorney’s fees and costs must be reasonable and will pay for your legal expenses.
No Compensatory or Punitive Damages
The FMLA doesn’t allow people to recover compensatory damages for their pain and suffering, emotional distress, medical expenses, or others. It also doesn’t allow people to recover punitive damages. Punitive damages are meant to punish a defendant for egregious behavior.
While compensatory and punitive damages are not available under the FMLA, they are available under the New Jersey Family Leave Act (NJFLA). However, the NJFLA has different qualifications than the FMLA and doesn’t cover leave taken to care for your serious health condition. It does cover situations in which you took time off from work to care for a seriously ill family member, however. Suppose this situation applies to why you took leave, and you meet the other eligibility requirements. In that case, you can file a claim in state court under the NJFLA and pursue damages for your economic and non-economic losses. Punitive damages under the NJFLA are capped at $10,000. Your employment lawyer will review your case and help you understand whether it makes more sense for you to file a claim under the FMLA or the NJFLA.
Talk to an Employment Attorney
If your employer violated your rights under the FMLA and retaliated against you for taking time off from work to care for your serious health condition or that of your family member, you should talk to an experienced employment attorney at Swartz Swidler. We have significant experience handling FMLA cases and can help you understand your rights and options. You might be entitled to recover back pay, front pay, attorney’s fees, costs, and liquidated damages in your claim. Call us to schedule a free consultation at (856) 685-7420.