In rejecting the employee's pre-trial motion for immediate reinstatement to his former position as premature, the court in Kauffman v. Federal Express Corp., No. 02-4068, 2006 U.S. Dist. LEXIS 81501 (C.D.Ill. Nov. 7, 2006) confirmed that reinstatement, where feasible, is an available remedy under the FMLA. However, reinstatement cannot be made in the absence of factual findings at trial "as the presumption of reinstatement can be overcome by a showing that the result of reinstatement would be a working relationship fraught with hostility and friction."
Comment: The FMLA provides for reinstatement as a remedy where the employee can establish that s/he was terminated in violation of the FMLA. The presumption favoring reinstatement, however, is not absolute. As explained in Kauffman, there are some situations where reinstatement will not be ordered even if the employee establishes that his/her termination was in violation of the FMLA. Where reinstatement is not appropriate, employers may be hit with a front pay award. Front pay is awarded to make up for future lost work caused by the employer's FMLA violation. While employees often look for front pay awards to cover the period of time up to retirement age, courts generally limit front pay to no more than five or six years, and frequently less. The limitation is due to the employee's obligation to find comparable replacement work through reasonable efforts.
Because it does not provide for civil suit, employees covered by Title II of the FMLA are limited to whatever remedies are available under the applicable grievance system. Reinstatement is a generally available remedy under most grievance systems.