Unlike Title VII and the ADA, the FMLA does not require employees to exhaust administrative remedies before filing a suit in federal court. Edwards v. Heatcraft, Inc., No. 7:05-cv-36 (HL), 2006 U.S. Dist. LEXIS 80134 (M.D.Ga. Nov. 2, 2006).
Comment: The FMLA permits an employee to file a complaint with the U.S. Department of Labor (DOL) or file a civil suit. An employee is not required to first file a complaint with the DOL before filing a civil suit. Indeed, there is nothing preventing an employee from filing a complaint with the DOL and filing a civil suit at the same time. As a practical matter, the DOL, with its limited resources, is very likely to drop the investigation of any complaint whee the employee files a civil suit on the same claim. Many employees opt to file a complaint with the DOL first as it costs nothing and the DOL may be able to quickly persuade the employer to fix the situation in the event the DOL believes that the employer is not in compliance with the FMLA. It may also be an informal means of discovery on the part of the employee that might be useful in a civil suit.
The DOL investigates the complaint. It does not, however, conduct a hearing on the FMLA claim. If the investigator believes that a violation exists, the DOL will try to get the employer to comply with the Act. Most employers yield to the findings and proposed remedy of the DOL. While the DOL has the legal right to take the employer to court to enforce the FMLA, because of limited resources, it rarely does so on behalf of individual employees. The prospect, however, unlikely, of litigation against the deep pockets of the federal government, is sobering. If the DOL cannot secure compliance and elects not to sue the employer itself, it notifies the employee that s/he has the right to file a civil suit and exits the scene.
Note that the decision applies to cases under Title I of the FMLA only. Employees covered by Title II of the FMLA do not have the right to file a civil suit against their federal employer for violations of the FMLA. Congressional employees and employees of the Executive Office of the President are required to exhaust administrative remedies before they are permitted to file a civil suit. The issue is addressed in Chapter 15 of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation (Dewey Publications, Inc. 2003 & 2005 Supp.).