The FMLA Blog

Absent Damages, Technical Violations of the FMLA Do Not Support Recovery

The FMLA does not afford an employee relief for technical violations of the Act absent proof that the employee was harmed by the employer's violation.  To demonstrate harm, an employee is not required to prove monetary damages.  However, they must be able to demonstrate some harm as a result of the violation.

In Demers v. Adams Homes of Northwest Florida, Inc., No. 08-13044, 2009 U.S. App. LEXIS 5844 (11th Cir. March 20, 2009) the employer violated the FMLA by denying the employee leave.  The employee was unable to articulate any harm suffered as a result of the denial.  In sustaining the award of summary judgment to the employer, the Eleventh Circuit observed that the FMLA does not entitle a plaintiff to recover for technical infractions of the FMLA absent damages.

Comment: To maintain a viable civil suit an employee must be able to demonstrate some harm or prejudice resulted from the FMLA violation.  The prejudice need not result in a monetary loss to the employee, but it might.  For example, the employee may have been required to use paid leave rather than unpaid FMLA leave for the absence.  Or the employee may have been subject to a cancellation fee for a missed medical appointment.  Absent prejudice, the employee's FMLA claim, even if the employer technically violated the FMLA, will likely be dismissed.               

Ninth Circuit Permits Recovery of Lost Wages Due to Emotional Distress Caused by FMLA Violation

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. 

FMLA Verdict Could Cost Chase Manhattan Over $8 Million

On March 17, 2008, a federal jury recently awarded a Chase Manhattan regional manager more than $2.2 million for violations of the FMLA.  The complaint alleged, and the jury found, that the employee was shown the door after making several requests for FMLA leave due to a serious health condition the company was aware of.  Chase disputed the claim, alleging that the manager voluntarily resigned. 

The case took several years to wind its way through the courts.  With prejudgment interest, double (liquidated) damages for a willful violation, front pay, and attorneys fees, Chase could easily be looking at a total payout of more than $8 million dollars.

For more information on the case, see the attached link.  http://www.law.com/jsp/article.jsp?id=1207133081980&rss=newswire 

Comment:  The large damage award in this case is somewhat unusual and largely attributable to the employee's $600,000 annual salary.  More typically an employer should anticipate damages in the high six or low seven figures for an employee's FMLA claim that goes all the way through a jury trial.  Class action FMLA claims could multiply that amount considerably.

High damage awards have contributed to an increase in FMLA litigation.  Other factors contributing to the increase in FMLA litigation include greater employee awareness of FMLA rights, the increased use of FMLA leave, the relative ease of proving a "serious health condition" compared to a "disability," and a greater awareness of the FMLA as a means of securing big judgments by the professional employment law bar.

To avoid being on the receiving end of a multi-million dollar adverse jury verdict, employers would be well advised to periodically audit their personnel policies to ensure that they comply with the FMLA.  Employers also need to provide up-to-date FMLA training to those involved with decisions involving FMLA leave, including discipline.  Courts and the DOL are always interpreting the FMLA in ways that are not obvious. Simply knowing the regulations is not enough to avoid a costly violation of the FMLA; employers must stay current with FMLA developments. 

       

FMLA Does Not Permit Recovery for Physical Injuries Resulting from Placement in a Non-Equivalent Job

In Bordeau v. Saginaw Control & Engineering, Inc., No. 04-10312-BC, 2006 U.S.Dist. LEXIS 59774 (E.D.Mich. Aug. 24, 2006), the issue presented was whether an employee may recover under the FMLA damages for physical injuries sustained when the employee returned to work following an approved medical leave but was placed in a job that required manual labor and therefore was not comparable to the job he left.  Mr. Bordeau was employed as a purchasing manager when he took approved FMLA leave to care for his elderly mother.  On his return Mr. Bordeau was given a manual labor job on the plant floor and not his previous purchasing manager job.  While performing his labor job Mr. Bordeau sustained a disabling back injury and has not been able to return two work.  Mr. Bordeau’s employment was terminated shortly after sustaining the injury.   Mr. Bordeau sued alleging violation of the FMLA. Specifically, he sought damages for physical injuries he suffered as a result of the employer’s failure to return him to his same or an equivalent position.  The employer moved for summary judgment alleging that the FMLA does not permit recovery of the damages sought by Mr. Bordeau.  The court agreed with the employer, but with a twist.

The remedy section of the FMLA states that an employer who violates the Act must pay the employee “damages equal to … any wages, salary, employment benefits, or other compensation denied or lost to such employee by reason of the violation; or … any actual monetary losses sustained by the employee as a direct result of the violation.”  The employer argued that Mr. Bordeau’s inability to work and earn money because of his back injury does not amount to wage loss or actual monetary loss “by reason of” or “as a direct result of” Saginaw Control’s FMLA violation.  The court agreed.  Relying on precedent in other courts, the court in Bordeau determined that the controlling language of the FMLA limits damages to actual, direct losses that ensue because of interference with or denial of rights under the Act.  To be compensable, actual direct losses must arise out of a quid pro quo relationship between the employer and an employee.  Here, the court found that Mr. Bordeau’s inability to work because of injury to his back was not a direct result of the employer’s FMLA violation. At most, the court found that disabling back injury was a consequences of the employer’ FMLA violation, but consequential damages were not available under the FMLA.  The court went on, however to find that the FMLA permits equitable relief, including front pay where, as here, reinstatement is not appropriate. 

    

Comment:  Monetary damages are available for violation of the FMLA.  The FMLA does, however, permit recovery for all damages suffered as a consequence of a violation.  Damages that do not arise directly out of the employer-employee relationship are generally not available.  Note, however, that the availability of front pay as an equitable remedy may go a long way in compensating an employee for loss of future income due to injuries suffered as a result of an employer’s FMLA violation.  The remedies available to employees for violation of the FMLA are addressed in Chapter 15 of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation (Dewey Publications, Inc. 2003 & 2005 Supplement).