FMLA Violations by Employers: Remedies, Deadlines, and Filing

Employers commit FMLA violations when they interfere with an employee’s right to take job-protected leave, retaliate against someone who requests or uses it, or fail to restore the person to the same or an equivalent position afterward.¹²³ If any of what follows describes what your employer did, you may have a claim worth pursuing.

Interference With Your Right to Take Leave

Interference doesn’t require an outright denial. Discouraging you from taking leave, dragging out a valid request, or demanding unnecessary medical documentation all count.⁴ The statute makes it illegal for an employer to interfere with, restrain, or deny anyone’s attempt to use FMLA leave, and courts read that broadly.¹

Point-Based Attendance Systems

Many employers run no-fault attendance programs that assign a demerit or point for every absence. Counting FMLA-protected days in those systems is a textbook violation.⁴ If accumulated points trigger a write-up, discipline, or a financial penalty, the employer has punished you for exercising a federal right. This is one of the most common violations and one of the easiest to prove, because the point records usually speak for themselves.

Withheld Bonuses

Whether an employer can withhold a bonus from someone who took FMLA leave depends on how the bonus works. If it requires meeting a specific goal like perfect attendance or a production target, and you missed the goal because of FMLA leave, the employer can withhold it only if employees on other comparable types of leave, such as paid vacation or sick time, also lose it.⁵ If the company pays attendance bonuses to people who took vacation but not to people who took FMLA leave, that’s a violation. After returning, you also have to be given the same opportunity to earn future bonuses that you had before leave started.

Retaliation for Requesting or Using Leave

Retaliation happens when an employer punishes someone for requesting or using FMLA leave. The statute makes it illegal to fire, demote, or otherwise discriminate against anyone who exercises FMLA rights or opposes unlawful practices under the Act, and the same protection covers employees who file a complaint, participate in an investigation, or testify about a violation.¹ Using leave as a negative factor in hiring, promotion, or disciplinary decisions is specifically prohibited.⁴

Timing is the classic red flag. A poor performance review that arrives within weeks of a multi-week absence, when every prior review was positive, raises a strong inference of retaliation. Courts look closely at whether the employer’s stated reason holds up or is a cover story. If only the person on FMLA leave gets terminated while coworkers with weaker records keep their jobs, the explanation that “it was performance-based” starts to collapse. An employer can lawfully include someone on FMLA leave in a genuine company-wide reduction in force, but the leave itself cannot factor into the decision.

Failure to Reinstate You Properly

When you return from FMLA leave, your employer must place you in the same job you held before, or in a position with equivalent pay, benefits, and working conditions.⁶ “Equivalent” means virtually identical. Shifting someone from day shift to nights, stripping supervisory duties, cutting a team from fifteen reports to zero, or relocating the office to add an hour of commute time all fail the standard. Health insurance and retirement contributions must stay at the same levels.

Employers often frame changes as operational necessity: “Your position was filled while you were out.” That doesn’t matter. The obligation is to hold or recreate the role regardless of administrative inconvenience.

The Narrow Key Employee Exception

There is one exception. An employer can deny reinstatement to a “key employee,” defined as a salaried, FMLA-eligible worker among the highest-paid 10 percent of all employees within 75 miles of the worksite.⁷ Even then, the employer can refuse only if reinstating you would cause “substantial and grievous economic injury” to its operations, a bar that goes well beyond ordinary inconvenience.⁸ The employer also has to notify the key employee of its intent to deny reinstatement at the time it makes that determination, giving the employee a chance to return to work rather than continue leave. A key employee who never receives that notice keeps full reinstatement rights.

Mishandling Intermittent Leave

FMLA leave doesn’t have to be taken all at once. Employees with chronic conditions or ongoing treatment often need a few hours for an appointment or a day here and there during a flare-up. Employers violate the law when they make intermittent leave harder to use than it needs to be.

Time increments are one pressure point. Employers must account for FMLA absences using the smallest increment they use for any other type of leave, and that increment can never exceed one hour.⁹ A company that tracks sick leave in 15-minute increments must track FMLA leave the same way. Forcing someone to burn a full day of FMLA leave for a two-hour appointment docks more leave than actually taken, which the regulations prohibit.

Recertification is another. Employers can ask for updated medical documentation, but generally no more often than every 30 days and only when the employee is actually absent. If the original certification states the condition will last longer than 30 days, the employer has to wait until that minimum duration expires before asking again.¹⁰ Regardless of duration, employers can always request recertification every six months. Requesting it more frequently than allowed, or using the process to pressure someone into not taking leave, is interference.

Notice, Eligibility, and Administrative Failures

The FMLA imposes specific communication obligations, and failing to meet them creates liability even without any bad intent.

Every covered employer must display a poster explaining FMLA rights in a prominent workplace location. Willfully failing to post it can result in a civil penalty of up to $216 per offense.¹¹ When an employee requests leave or the employer learns the leave may qualify, the employer must provide a written eligibility notice within five business days, explaining the employee’s rights and responsibilities, including any medical certification requirement.¹²

Eligibility miscalculations show up often. To qualify, you must have worked 1,250 hours of service in the 12 months before leave begins.¹³ Employers sometimes get this wrong by leaving out mandatory overtime or by incorrectly including paid time off, since only hours actually worked count. If the employer doesn’t keep accurate records, the burden shifts to the employer to prove you didn’t meet the threshold.¹⁴ A wrongful denial based on a math error carries the same legal consequences as a deliberate one.

What You Can Recover

A prevailing employee is entitled to lost wages, salary, benefits, and any other compensation denied because of the violation.¹⁵ If the violation didn’t cause lost wages, say the employer interfered with your rights but you kept your job and paycheck, you can still recover actual monetary losses like out-of-pocket caregiving costs, up to the equivalent of 12 weeks of wages.

On top of that, the statute provides liquidated damages equal to the sum of lost compensation plus interest, effectively doubling the monetary award. A court can reduce or eliminate liquidated damages only if the employer proves both that it acted in good faith and that it had reasonable grounds for believing its conduct was lawful. That’s a tough standard, and in practice liquidated damages are awarded in most successful cases. Courts also grant equitable relief, which can include reinstatement and promotion if one was denied because of the violation.

The FMLA further requires the employer to pay a prevailing employee’s reasonable attorney fees, expert witness fees, and other litigation costs. That fee-shifting provision matters, because it makes it financially viable for attorneys to take FMLA cases on contingency or with reduced upfront cost.

How Long You Have to File

You have two years from the date of the last event that constitutes the violation to file a lawsuit.¹⁵ If the violation was willful, meaning the employer knew or showed reckless disregard for whether its conduct was unlawful, the deadline extends to three years. The clock runs from the last violating act, which matters when the unlawful conduct is ongoing rather than a single event. Missing the deadline means losing the right to sue no matter how strong the underlying claim is.

Lawsuit or DOL Complaint

You have two paths for enforcement, and they serve different purposes.

Private Lawsuit

The FMLA gives employees a private right of action, so you can file a civil lawsuit in any federal or state court without waiting for the government to act.¹⁵ This is how most FMLA violations are ultimately resolved. A lawsuit lets you seek the full range of statutory damages, including lost wages, liquidated damages, and attorney fees, and you control the timeline and strategy. You don’t need to exhaust any administrative process before going to court.

Department of Labor Complaint

You can also file a complaint with the Department of Labor’s Wage and Hour Division, which enforces the FMLA at the federal level.¹⁶ You can reach the agency at 1-866-487-9243 or online, and your complaint will be routed to the nearest field office.¹⁷ If the agency investigates and confirms a violation, it can require the employer to pay back wages or reinstate the worker. The DOL route is free and doesn’t require a lawyer, but you have less control over pace and outcome, and investigations can take months.

Evidence Worth Gathering Now

Whether you pursue a lawsuit or a DOL complaint, the strength of your case depends on what you can document. Start collecting evidence as early as possible, ideally before the situation escalates.

Pay stubs, offer letters, or other records showing at least 12 months of employment and the hours you worked, which establish eligibility.
Copies of the medical certification your provider completed, such as the WH-380-E for your own condition or WH-380-F for a family member’s. Employers must accept a complete certification in any format, including on a provider’s letterhead.¹⁸
A dated log of every conversation and email with HR or management about your leave, including names and what was said. Save the emails and texts themselves rather than relying on memory.
Your employee handbook, attendance policy, and any written communications about bonuses or leave rules. Internal policies that conflict with federal law can be powerful evidence.
Any disciplinary notices, schedule changes, demotions, or termination letters that followed your leave request, along with the dates they occurred relative to the leave.

Organizing these materials before you contact an attorney or file a complaint lets you present a clear, chronological account instead of reconstructing events from memory months later. The strongest FMLA cases are almost always the best-documented ones.

1
Office of the Law Revision Counsel. 29 USC 2615 – Prohibited Acts
2
U.S. Department of Labor. Fact Sheet 28 – The Family and Medical Leave Act
3
Office of the Law Revision Counsel. 29 USC 2612 – Leave Requirement
4
U.S. Department of Labor. Fact Sheet 77B – Protection for Individuals Under the FMLA
5
U.S. Department of Labor. Family and Medical Leave Act Advisor – Maintenance of Benefits
6
eCFR. 29 CFR 825.214 – Employee Right to Reinstatement
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U.S. Department of Labor. Family and Medical Leave Act Advisor – Key Employees and Their Rights
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eCFR. 29 CFR 825.216 – Limitations on an Employee’s Right to Reinstatement
9
eCFR. 29 CFR 825.205 – Increments of FMLA Leave for Intermittent or Reduced Schedule Leave
10
U.S. Department of Labor. Family and Medical Leave Act Advisor – Recertification
11
U.S. Department of Labor. Civil Money Penalty Inflation Adjustments
12
eCFR. 29 CFR 825.300 – Employer Notice Requirements
13
U.S. Department of Labor. FMLA Frequently Asked Questions
14
U.S. Department of Labor. Family and Medical Leave Act Advisor – Hours of Service Requirement
15
Office of the Law Revision Counsel. 29 USC 2617 – Enforcement
16
Worker.gov. Filing a Complaint with the U.S. Department of Labor’s Wage and Hour Division
17
U.S. Department of Labor. How to File a Complaint
18
U.S. Department of Labor. FMLA Forms