The FMLA provides that a court shall award liquidated damages doubling the amount of lost compensation plus interest for violation of the FMLA. An employer may avoid liquidated damages if it proves to the satisfaction of the court that: (1) it acted in god faith; and (2) the employer had reasonable grounds for believing that the act or omission was not a violation of the FMLA. The employer bears the burden of establishing both good faith and reasonable grounds in order to avoid liquidated damages.
In Cobb v. Contract Transport, Inc., No. 04-305-KSF, 2007 U.S. Dist. LEXIS 45043 (E.D.Ky. June 21, 2007), the employee established that the employer violated the FMLA. The issue before the court was whether to award liquidated damages. In favor of an award of liquidated damages, the employee argued that the employer failed to establish good faith and reasonable grounds for its action because it failed to consult with an attorney, the Department of Labor, or the DOL FMLA regulations before terminating his employment in violation of the FMLA. The Court disagreed. The Court noted that consultation with an attorney or with the Department of Labor was not required to establish good faith. The Court found that the employer's review of the statute and DOL FMLA regulations, in light of its prior experience with the FMLA, was sufficient to establish good faith and reasonable grounds for believing (erroneously, as it turns out) that the employee was not covered by the FMLA and, therefore, termination of the employee was permissible.
Comment: Consultation with an attorney is not required in order for an employer to demonstrate good faith. Of course, it couldn't hurt either. To avoid the FMLA presumption in favor of liquidated (double) damages, employers are going to want to show that they consulted with the DOL regulations, an attorney, and/or an FMLA expert before making an FMLA decision.
The decision is relevant to non-civil service employees, congressional employees, and employees of the Executive Office of the President. It is not relevant to civil service employees covered by Title II of the FMLA, which does not provide for liquidated damages or permit suit against the federal employer.