Under the Family Medical and Leave Act (FMLA) of 1993, most employees in the United States are entitled to up to 12 weeks of unpaid leave from their jobs for a serious medical condition. In addition to the employee’s own serious medical condition, this leave can be taken for a number of reasons, such as:
- Pregnancy or caring for a newborn baby
- Recovering from surgery or caring for a family member who has had surgery
- Taking care of a parent, stepparent, or adoptive parent
- Helping a child under 18, or over 18 if they are unable to care for themselves
- Caring for anyone who you stand “in loco parentis with” – this could apply to a niece, nephew, grandchildren, etc.
The FMLA offers you protection if you need to leave your job for these reasons, so long as you work for a company that has a minimum of 50 employees and have been with your employer for at least 12 months. You need to have also logged at least 1,250 hours of work prior to the day you request your FMLA leave. This act is applicable to private employers, public agencies with state, federal, or local employees, and schools.
If you feel that your employer has interfered with your right to take FMLA leave, you may have legal recourse, and you may be owed compensation. The team at The Law Firm of Morgan Rooks, P.C. can listen to the details of your case at your free initial consultation. Call us today at (856) 817-6221 to speak with a member of our experienced legal team.
Learn More About FMLA Requests
Under the FMLA, there are certain guidelines pertaining to your request. For example, your employer must respond to your request for leave within five business days of receiving it or having an awareness of your need to use it. While your request does not have to be in writing, we always recommend that you document everything as much as possible, including the request.
You are also not obligated to provide your employer with an exact duration for your request, so if they ask, know that you do not have to tell them. For any type of foreseeable leave, such as pregnancy or a scheduled surgery, you should give at least 30 days of notice before your leave begins. In an emergency situation, you will need to let them know as soon as it is practical.
Your employer must then give you a written notice detailing any related expectations or obligations they have for you, as well as outlining any consequences that there may be if you fail to complete those obligations.
What Should Happen While You Are Gone
While you are away on FMLA leave, your employer is required to continue providing you with the same insurance benefits that you had before going on leave. They cannot take away any of the benefits that you accrued before FMLA kicked in, and if they try to, contact a lawyer immediately. Your employer may have someone step in and fill the role while you are away, but upon your return, the employer should have the same position, or a similar one, available for you with the same benefits, salary, and any other applicable terms of your employment.
How an Employer May Violate FMLA Regulations
Following FMLA regulations, an employer cannot refuse you any rights under the act, nor can they interfere with you using those rights. They also cannot discriminate, retaliate, or fire you for using your FMLA rights. Examples of violating your rights may include refusing FMLA leave for an eligible employee, discouraging an employee from taking their leave, or manipulating an employee’s hours or workload to avoid FMLA responsibilities.
Steps to Take If Your FMLA Rights Have Been Violated
If you believe or suspect that your FMLA rights were violated by your employer, then you first need to document everything that has happened to you. Then, you need to contact a well-versed employment law attorney to review the details and circumstances of your case with them.
At The Law Firm of Morgan Rooks, P.C., our legal team will listen to your story and provide an honest, forthright assessment of your case and your best legal options. If we determine that your rights have been compromised by your employer, we will leverage our experience and comprehensive resources to develop a solid and compelling case on your behalf.
We will initiate communication with your employer to notify them of their violations of your legal rights and the FMLA regulations, and we’ll demand that they preserve evidence and facts relevant to your case. We’ll then give them an opportunity to address their illegal and unfair conduct, and compensate you for your mistreatment and financial losses. We’ll negotiate assertively and skillfully on your behalf to secure a fair settlement offer that will make you whole again.
Some of the types of compensation you may be owed include:
- Lost Wages
- Back Pay
- Front Pay
- Punitive Damages
- Legal Fees & Costs
While most cases are settled outside of court, we will also be fully prepared to fight on your behalf in the courtroom, if needed, to win a fair settlement.
First Step: Filing an Official Complaint
One of the first steps you’ll need to take to protect your rights in a discriminatory FMLA case is to file an official complaint. To begin the complaint process, employees should first reference their employee handbook and identify their company’s written procedures and policies. Failing to do so may prevent one from taking legal action in the future. After establishing protocol, an individual can then file a written complaint to put the company on notice officially. This initial step gives the company a chance to fix the problem while also protecting the employee’s right to file a lawsuit in the future should it go that far.
Employees can’t file a complaint based on any behavior they feel is unfair or for something they don’t like about a colleague or boss. For a complaint to be deemed legitimate, it has to identify specific behavior that the employee believes is discriminatory or harassing in nature. Complaints about discrimination based on protective traits like pregnancy, gender, sexual preference, race, or religion are considered “protective activity,” meaning employees can file these complaints without fear of retaliation by supervisors or employers. Protected activity can also include complaints about unpaid overtime or wages but does not include things like a boss or manager being “mean.”
Employers can avoid liability claims of discrimination or harassment through an affirmative defense. To do this, the employer must show they took appropriate action to stop and reverse all illegal discrimination or harassment, and the employee who filed the complaint failed to capitalize on the employer’s preventive or corrective actions. The affirmative defense is not always available, especially in the event of a demotion or termination.
Frequently Asked Questions About FMLA Violations
If you believe your employer is in violation of the Family Medical and Leave Act, you likely have numerous questions, and you should discuss the details of your case with a knowledgeable attorney. However, we’ve provided answers to some of the questions we frequently receive that might be useful.
Should my company pay me while I’m on FMLA leave?
The FMLA only guarantees unpaid leave and does not provide for paid leave regulations. You are, however, allowed to use any accrued paid leave that you have as part of the time you are away from work for any FMLA-related reason.
What are my options if my spouse is called up to active military duty?
If you have a spouse in the military and they are called up to active duty, you can elect to use your FMLA leave to take care of a child or any other “qualifying exigencies,” according to the U.S. Department of Labor.
Can I take FMLA if I adopt a child?
If you want to take FMLA after adopting a child, you may do so as long as it is within 12 months of the placement date, but the dates of the leave must be approved by your employer. If a child is sick and you need to leave to care for them, then it is your right to take your FMLA time.
Can both mothers and fathers use FMLA to care for a newborn?
Both parents are entitled to an FMLA leave if they need to care for a newborn, and a mother can also use the time to recover from childbirth or any pregnancy complications that she encountered. A father can also take time to help the mother recover from any pregnancy or childbirth complications.
Contact The Law Firm of Morgan Rooks, P.C. Today
Every day, the New Jersey employment lawyers at The Law Firm of Morgan Rooks, P.C. tackle complex discrimination cases to protect the rights of New Jersey and Pennsylvania employees. If you’re facing discrimination related to your pregnancy or your FMLA leave, contact our dedicated attorneys today. We will listen to your case, provide clear legal advice, and work tirelessly to get the settlement you deserve.
Call us today at (856) 817-6221 to schedule your initial consultation with our legal team so we can discuss your case.