The remedial provisions of the FMLA provide that any employer who violates the law will be liable to any eligible employee affected, damages equal to:
Any wages, salary, employment benefits, or other compensation denied or lost to such employee by reason of the violation.
The FMLA only permits an employee to recover compensatory damages for actual monetary losses suffered by the employee as a result of an employer's violation of the Act. The FMLA does not permit the recovery of emotional distress or punitive damages.
In Farrell v Tri-County Metropolitan Transportation District of Oregon, No. 06-35484, 2008 U.S. App. LEXIS 13574 (9th Cir. June 27, 2008), the employer appealed an adverse jury verdict awarding the employee, in relevant part, $1,110.00 in lost wages for the employer's violation of the FMLA. On appeal, the employer conceded that it violated the FMLA by denying Farrell's requests for FMLA leave. The employer appealed the jury's finding that Farrell was entitled to $ 1,110.00 in lost wages because of stress or other mental problems resulting from the wrongful denial of FMLA leave that caused him to miss a few days of work. The employer argued that the jury's finding amounts to an impermissible award of emotional distress damages. The Ninth Circuit disagreed.
The Court found that the jury's verdict did not award Farrell damages for emotional distress, but rather for days of work he missed because of stress or other mental problems resulting from the wrongful denial FMLA leave. Unlike emotional distress, which requires valuating an intangible, lost wages can, the Court found, be easily quantified in accordance with the remedy provisions of the FMLA. As actual damages lost by reason of the FMLA violation, the Court found that they could be recovered.
Comment: The opinion reads the remedial provisions of the FMLA expansively to include actual losses resulting from emotional distress caused by the employer's violation of the FMLA, such as an employee's having to take unpaid days off of work. The decision does NOT open the door for recovery of emotional distress damages absent evidence of actual monetary loss. It will be interesting to see how the courts handle proof of causation connecting the claimed actual loss, emotional distress, and the FMLA violation.
The opinion applies to federal non-civil service employees covered by Title I of the FMLA. The decision is not applicable to federal civil service employees covered by Title II of the FMLA. Title II of the FMLA does not provide civil service employees the right to sue their federal employer for violations of the FMLA. T