This is the second post in a series I’m working on called “What is My Case Really Worth?”  This post focuses on Family and Medical Leave Act (“FMLA“) cases.  As you may 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. 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. Assuming that an employee has a valid FMLA claim as far as liability is concerned, what damages is the employee 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, despite your diligent efforts in continuously searching for a comparable job, your back pay would be for one year. Employees have to keep looking for jobs and submitting applications both before and during the pendency of a lawsuit. The continued search for subsequent comparable employment is a crucial part of mitigating the employee’s 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 time that the matter goes to trial. 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. Again, this is all dependent on the employe truly and diligently trying to obtain a new job.


Unlike Title VII and the ADA, the FMLA provides for liquidated damages.  Liquidated damages are kind of like “double damages” because they are typically calculated by multiplying an employee’s 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 more or less the rule rather than the exception, however, and the burden is on the employer to establish that their actions were taken in good faith.


Although most employees would probably not be too interested in going back to go back to work for the employer that interfered with or retaliated against them for using FMLA leave, reinstatement is indeed an available remedy under the FMLA. Of course this often requires an employer to return to work for an employer that she has possibly filed a lawsuit against, which, as one would probably imagine, would not make for the most comfortable working situation. For this reason, reinstatement is many times not a practical remedy in situations, quite often due to the sheer animosity existing between the parties.

If the Court does not award reinstatement, then the court may instead determine that an award of front pay is appropriate under the circumstances.  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.  Employees who obtain a subsequent job with the same or higher pay as their old job, are not typically entitled to an award of back pay.


Reasonable attorney’s fees and costs are awarded, if an employee prevails.


One 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.  An action for IIED does not typically have a cap on damages 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 an employee has 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.


Like Title VII and ADA cases, FMLA cases in federal court must be mediated pursuant to District Court of South Carolina rules.  This allows both sides the opportunity to attempt to reach a resolution short of trial, which is anything but certain.


An employee with an FMLA claim may be entitled to back if he or she prevails at trial.  You could 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 the employer. Neither compensatory nor punitive damages are recoverable under the FMLA, but attorney’s fees and costs may be awarded at the judge’s sole discretion. If you feel you have been subjected to an FMLA violation, then you should contact a South Carolina employment lawyer.

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