Today I am releasing Part Two of the three part series in “What is My Case Really Worth?” Part Two focuses on Family and Medical Leave Act (“FMLA“) cases. As we all know, the FMLA entitles an employee who has been working with a company for a year or more to twelve weeks of unpaid leave for a serious health condition; to care for a parent, spouse, or child with a serious medical condition; or for the birth, adoption, or beginning of foster care for a child. We also know that an employer must employ 50 or more employees within a 75-mile radius of the employee’s workplace for them to fall under the Act. An employee using FMLA leave is entitled to have their same position (or a comparable position in terms of pay, advancement opportunities, and duties) restored to them upon returning from FMLA leave. I have written extensively on ways that an employer can interfere with or retaliate against employees for using FMLA leave. We also know that you do NOT need to file an EEOC complaint to bring an FMLA claim. Assuming you have a valid FMLA claim, what damages are you entitled to under the law?
Back pay is the most often awarded damage in FMLA cases. There is no cap on back pay. Back pay includes all of the wages, salary, bonuses, commissions, and benefits (health insurance, 401k, paid time off, life insurance, etc.) lost because of FMLA interference or retaliation MINUS any amount you earned in the interim. It also includes interest, overtime, shift differentials, and raises you would have received had you not been terminated. One thing that is difficult for employees to understand is that your back pay is cut-off and stops if you get a new job making the same amount of money (or more) as your old job. For example, if you are terminated for using FMLA leave on December 1st but get a new job making the same amount or more one week later, you would be entitled to back damages for one week of pay only! However, if you are unemployed for a year and cannot find a new job, your back pay would be for one year. You have to keep looking for jobs and submitting applications while your case is in court! Your continued search for subsequent comparable employment is a crucial part of mitigating your damages. And in case you are asking, “how will my old employer even know that I am working now?,” they are going to request copies of your tax returns during the course of discovery and you will be obligated to give these up. Also worth noting, if you accept a new job but it makes less than your old job, you are still entitled to the difference in wages between your old job and new job to the present time. For example if you were making $50,000 per year as a store manager before being terminated, but then two months later find a new job as an assistant manager at a smaller store making $35,000 per year, you would be entitled to back pay for the full two months while you weren’t working, plus $15,000 annually thereafter (the difference between your old and new job) until the matter is resolved.
LIQUIDATED DAMAGES (“DOUBLE DAMAGES”), PLUS INTEREST
Unlike Title VII and the ADA, the FMLA provides for liquidated damages. I call liquidated damages “double damages” because they are typically calculated by multiplying your back pay times two. By statute, liquidated damages are assumed for a violation of the FMLA. However, an employer can avoid liquidated damages if they can prove that the action or omission was in good faith and that they had an objective reasonable ground to believe that the act or omission did not violate the FMLA. Courts have found that good faith requires proof that the employer took affirmative steps to comply with the FMLA. Liquidated damages are the rule, not the exception, and the burden is on the employer to establish that their actions were taken in good faith. That is a bonus for employees!
REINSTATEMENT OR FRONT PAY, AT THE COURT’S DISCRETION
Although most employees do not want to go back to work for the employer that interfered with or retaliated against them for using FMLA leave and that they are now suing, reinstatement to your prior position with your old employer is an option under the FMLA. In my experience, and for perhaps obvious reasons, reinstatement is not a viable or common remedy in employment law cases.
If the Court does not award reinstatement, they might order that an award of “front pay” is appropriate. Front pay is available at the court’s discretion for employees who are still unemployed and where it appears unlikely that the employee will be able to get a new job for some time into the future. The court estimates out how long it is likely before the employee could find a new comparable job and awards pay up until that future point in time. You do not get front pay if you have a new job that is making the same or more than your old job. Unlike back pay, front pay is determined by the judge and not the jury and just because the jury awards you back pay does not mean that the judge will award you front pay.
ATTORNEY’S FEES AND COSTS
Reasonable attorney’s fees and costs are awarded, if you prevail.
COMPENSATORY AND PUNITIVE DAMAGES NOT PERMITTED
The biggest difference between FMLA cases and other types of employment related lawsuits is that the FMLA does NOT provide for punitive or compensatory damages. Compensatory damages are also called actual damages and include emotional distress, physical distress, pain and suffering (grief, anxiety, depression, embarrassment), medical bills, and mental impairment. Punitive damages are commonly referred to as “punishment damages” and punish the company for the wrong-doing, hopefully deterring them from committing the same offenses in the future. These damages are NOT permitted under the FMLA (perhaps the trade-off for allowing liquidated damages, as discussed above). In South Carolina, we do have a state cause of action called “intentional infliction of emotional distress” and employees can sometimes plead this cause of action if they have suffered severe emotional distress. This cause of action does not have a cap and permits both compensatory and punitive damages. You must have proof of mental suffering (psychiatric treatment notes, etc.) and this cause of action can sometimes open you up to a mental examination from the other side and require retaining expert witnesses, which can be expensive. However, it is an option if the facts support that you have sought significant psychiatric treatment from the employer’s actions. Not all FMLA cases will support a cause of action for intentional infliction of emotional distress.
If you have a valid FMLA claim, you are likely to receive your back pay if you prevail. You might also receive liquidated/double damages if the employer cannot put up a good faith reason for interfering with or retaliating against you for using or seeking FMLA leave. This burden is on the employer and not you! You cannot get compensatory or punitive damages but attorney’s fees and costs may be awarded. It is also worthy of note that FMLA cases generally have high jury appeal. Someone who has been fired or retaliated against for using FMLA leave due to a serious health condition or a family member’s serious health condition can present a very sympathetic case that jury members can often relate to. It is also important to remember that the FMLA provides for both employer and INDIVIDUAL liability so both your old employer and all of the individuals personally involved in making or taking action against your FMLA leave can be sued (i.e., your supervisor, HR director, etc.)