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Federal FMLA Regulations for the Family and Medical Leave Act of 1993
What Enforcement Mechanisms Does FMLA Provide?
| Enforcement, general rules. 825.400
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| (a) The employee has the choice of:
(1) Filing, or having another person file on his or her behalf, a
complaint with the Secretary of Labor, or
(2) Filing a private lawsuit pursuant to section 107 of FMLA.
(b) If the employee files a private lawsuit, it must be filed
within two years after the last action which the employee contends was
in violation of the Act, or three years if the violation was willful.
(c) If an employer has violated one or more provisions of FMLA, and
if justified by the facts of a particular case, an employee may receive
one or more of the following: Wages, employment benefits, or other
compensation denied or lost to such employee by reason of the
violation; or, where no such tangible loss has occurred, such as when
FMLA leave was unlawfully denied, any actual monetary loss sustained by
the employee as a direct result of the violation, such as the cost of
providing care, up to a sum equal to 26 weeks of wages for the employee
in a case involving leave to care for a covered servicemember or 12
weeks of wages for the employee in a case involving leave for any other
FMLA qualifying reason. In addition, the employee may be entitled to
interest on such sum, calculated at the prevailing rate. An amount
equaling the preceding sums may also be awarded as liquidated damages
unless such amount is reduced by the court because the violation was in
good faith and the employer had reasonable grounds for believing the
employer had not violated the Act. When appropriate, the employee may
also obtain appropriate equitable relief, such as employment,
reinstatement and promotion. When the employer is found in
violation, the employee may recover a reasonable attorney's
fee, reasonable expert witness fees, and other costs of the action from
the employer in addition to any judgment awarded by the court.
[73 FR 68106, Nov. 17, 2008]
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| Where may an employee file a complaint of FMLA violations with the Federal government? 825.401
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| (a) A complaint may be filed in person, by mail or by telephone,
with the Wage and Hour Division, Employment Standards Administration,
U.S. Department of Labor. A complaint may be filed at any local office
of the Wage and Hour Division; the address and telephone number of
local offices may be found in telephone directories or on the
Department's Web site.
(b) A complaint filed with the Secretary of Labor should be filed
within a reasonable time of when the employee discovers that his or her
FMLA rights have been violated. In no event may a complaint be filed
more than two years after the action which is alleged to be a violation
of FMLA occurred, or three years in the case of a willful violation.
(c) No particular form of complaint is required, except that a
complaint must be reduced to writing and should include a full
statement of the acts and/or omissions, with pertinent dates, which are
believed to constitute the violation.
[73 FR 68107, Nov. 17, 2008]
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| How is an employer notified of a violation of the posting requirement? 825.402
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| Section 825.300 describes the requirements for covered employers to
post a notice for employees that explains the Act's provisions. If a
representative of the Department of Labor determines that an employer
has committed a willful violation of this posting requirement, and that
the imposition of a civil money penalty for such violation is
appropriate, the representative may issue and serve a notice of penalty
on such employer in person or by certified mail. Where service by
certified mail is not accepted, notice shall be deemed received on the
date of attempted delivery. Where service is not accepted, the notice
may be served by regular mail.
[73 FR 68107, Nov. 17, 2008]
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| How may an employer appeal the assessment of a penalty for willful violation of the posting requirement? 825.403
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| (a) An employer may obtain a review of the assessment of penalty
from the Wage and Hour Regional Administrator for the region in which
the alleged violation(s) occurred. If the employer does not seek such a
review or fails to do so in a timely manner, the notice of the penalty
constitutes the final ruling of the Secretary of Labor.
(b) To obtain review, an employer may file a petition with the Wage
and Hour Regional Administrator for the region in which the alleged
violations occurred. No particular form of petition for review is
required, except that the petition must be in writing, should contain
the legal and factual bases for the petition, and must be mailed to the
Regional Administrator within 15 days of receipt of the notice of
penalty. The employer may request an oral hearing which may be
conducted by telephone.
(c) The decision of the Regional Administrator constitutes the
final order of the Secretary.
[73 FR 68107, Nov. 17, 2008]
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| What are the consequences of an employer not paying the penalty assessment after a final order is issued? 825.404
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| The Regional Administrator may seek to recover the unpaid penalty
pursuant to the Debt Collection Act (DCA), 31 U.S.C. 3711 et seq., and,
in addition to seeking recovery of the unpaid final order, may seek
interest and penalties as provided under the DCA. The final order may
also be referred to the Solicitor of Labor for collection. The
Secretary may file suit in any court of competent jurisdiction to
recover the monies due as a result of the unpaid final order, interest,
and penalties.
[73 FR 68107, Nov. 17, 2008]
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