A California employer can violate the FMLA in the following ways:

  • a) refusing to restore an employee to his or her former position if available or to an equivalent position after FMLA leave, or purposefully refusing to do so solely because the employee was missing time from work or exercising his or her rights under the FMLA.
  • b) Discharging, suspending, demoting or disciplining an employee because of the FMLA absence.
  • c) Failure or refusal to allow the employee to use time off under the protection of FMLA.
  • d) Termination of an employee eligible for FMLA leave as of the date needed (example, an employee who is to give birth on January 15, and would have met the requisite work hours as of January 1, but is terminated on December 31 to avoid the FMLA protection).
  • e) an employer that retaliates by giving an employee a false write up, a poor annual review, or otherwise subjects the employee to discipline over performance issues which other employees are not disciplined for
  • f) any form or harassment,  retaliation which causes the employee loss of income or loss of promotional opportunities for complaining about FMLA violations, telling other employees about FMLA rights, or you seeking to exercise your rights under the FMLA.
  • g) Any action by the employer to interfere or prevent you from the projections of the FMLA.
  • h) Any coercive behavior, threats, or intimidation to discourage an employee from taking leave or seeking FMLA protection.

What should I do if I am being retaliated against, interfered with or was fired after taking FMLA?

You should immediately seek legal opinion from a trusted, proven, experienced attorney who works primarily in labor and employment law. At the Law Office of Jacob I. Kiani we have trusted attorneys who know the intricacies of the FMLA and its protections.

Basic information is also available at the Department of Labor Website:  www.dol.gov/esa/whd/fmla.  Also, DOL published fact sheets are included herein as pdf exhibits.There is no requirement that the retaliation by the Employer be job related to be subject to violation of the FMLA.  The U.S. Supreme Court in Burlington N & S.F. Ry. V. White, 126 S.Ct 2405 (2006) held that relation need not be job-related to be actionable under TITLE VII.

If I lose my job and the employer violated the FMLA, what are my remedies?

An employee who loses his or her job due to missing time from work where the employer has violated the FMLA is eligible for the following damages as per 29 U.S.C. Section 2617a(1):

  • a) Back pay:  2 years unless 3 years for willful violations (Sections 2617c(1) and (2);  See Nevada Dept. of Human Resources v. Hibbs, 538 U.S. 721, 740 (2003),
  • b) Reinstatement,
  • c) Or front pay in lieu of reinstatement,
  • d) Plus pre-judgment interest
  • e) The value of employee benefits lost.
  • f) An employee also may recover liquidated damages:  an equal sum the actual damages incurred as a penalty to the employer;
  • g) Plus the employer must pay the employee's attorney's fees and expenses of litigation.