FMLA Violations: Interference, Retaliation, and How to File

An FMLA violation is any employer action that blocks you from taking the job-protected leave guaranteed by the Family and Medical Leave Act or punishes you for using it. Violations split into two categories: interference, which prevents leave from happening, and retaliation, which punishes you after the fact.¹ If you win a claim, you can recover lost wages, an equal amount in liquidated damages, interest, and attorney fees, and you have two years to sue (three if the violation was willful).²

One threshold matters before anything else. The FMLA only protects you if your employer is covered (50 or more employees, or a public agency or school) and you personally qualify: 12 months on the job, 1,250 hours in the prior year, and at least 50 employees within 75 miles of your worksite.³ The 75-mile rule catches people at large national companies with small local offices. Confirm coverage first, because everything below assumes you are eligible.

What Counts as Interference

Federal regulations prohibit employers from interfering with, restraining, or denying the exercise of any FMLA right, and intent does not have to be malicious for the conduct to count.⁴ The Department of Labor recognizes several common forms:⁵

Refusing to authorize leave for an employee who clearly meets the eligibility requirements.
Discouraging leave by suggesting it will hurt your promotion chances, your review, or your job security.
Manipulating your schedule to push your hours below the 1,250 threshold before you can request leave.⁶
Assigning attendance points or triggering progressive discipline for absences that were actually FMLA-protected.
Staying silent when management knows about a qualifying event and never mentions FMLA or hands over the paperwork.

The no-fault attendance issue is worth flagging on its own. Many companies run automated attendance systems that do not distinguish protected leave from a regular absence. If the system docks you for FMLA time, the employer is liable even when the cause was a software default rather than a deliberate call.

Intermittent leave produces its own set of violations. FMLA leave does not have to be taken in one continuous block, and employees with chronic conditions often need to take a day or a half-day as symptoms flare. Employers sometimes resist because intermittent absences are harder to schedule around. Pressuring you to take leave in larger chunks, demanding unnecessary recertifications to create friction, or reassigning you to a worse role because your intermittent absences are inconvenient all qualify as interference.⁴

What Counts as Retaliation

Retaliation punishes you for leave you already took or requested. Employers cannot use an FMLA request or leave as a negative factor in hiring, promotion, or discipline.⁵ Termination shortly after a leave request is the obvious version, but subtler moves count too: stripped responsibilities on return, a relocated office, an unworkable shift change, a first-ever negative performance review, being passed over for a promotion you were previously favored for, or being placed on a performance improvement plan with unrealistic targets. Timing between the leave and the adverse action is often the strongest evidence of a causal link.

Bonuses and Benefits

Employers can deny a bonus tied to a measurable goal like perfect attendance or a sales target if you did not hit the goal because you were on leave. But there is a catch: if employees who took comparable leave (paid vacation, jury duty) still receive the bonus, you must receive it too. On return from FMLA leave, you are entitled to the same access to bonuses, profit-sharing, and other discretionary payments as similarly situated employees.⁷ Blanket policies that automatically exclude anyone who took FMLA leave from the bonus pool are violations.

Fitness-for-Duty Abuse

An employer may require a fitness-for-duty certification before you return, but only if it applies that requirement uniformly to everyone in the same occupation who took leave for the same type of condition. The certification can only address the specific condition that triggered your leave. If the employer wants it to cover the essential functions of your job, it must provide a list of those functions no later than the designation notice.⁸ Skip that step, and the employer cannot hold a thin certification against you.

Notice and Recordkeeping Failures

Falling short of FMLA’s paperwork obligations is a standalone violation. Every covered employer must post a general notice of FMLA rights in a conspicuous place, whether or not any current employee is eligible.⁹

Beyond the poster, employers must deliver three individual written notices during the leave process: an eligibility notice, a rights-and-responsibilities notice, and a designation notice confirming that your leave counts as FMLA. Missing any of these is a violation on its own, even if the underlying leave was granted.⁹ Employers must also maintain leave records under Fair Labor Standards Act recordkeeping standards.¹⁰ When those records are incomplete, courts tend to resolve the resulting ambiguities in the employee’s favor.

What You Can Recover

FMLA’s damages structure can effectively double your compensation, which is why employers take these claims seriously. The statute allows:²

Lost wages, salary, and benefits denied because of the violation.
Actual monetary losses if you did not lose wages but paid out of pocket, up to the equivalent of 12 weeks of wages (26 weeks for military caregiver leave).
Interest at the prevailing rate on top of your lost compensation.
Liquidated damages equal to your lost wages plus interest. This is the doubling provision. The court must award it unless the employer proves the violation was made in good faith with reasonable grounds for believing its conduct was lawful.
Equitable relief, including reinstatement or promotion.
Reasonable attorney fees, expert witness fees, and other litigation costs.

A worker fired after requesting leave who lost $40,000 in wages could recover that amount, then roughly the same again as liquidated damages, then interest and attorney fees on top. The good-faith defense is a high bar; being unaware of the law is not enough.

Deadlines You Cannot Miss

You have two years from the last event that constituted the violation to file a lawsuit. If the violation was willful (the employer knew its conduct was unlawful or showed reckless disregard), the deadline extends to three years. The court decides willfulness.²

Here is the trap: filing a complaint with the Department of Labor does not pause your lawsuit clock. While the DOL investigates, the statute of limitations keeps running. Spend 18 months waiting for the agency to act and you may have only a few months left, or none at all. If a lawsuit is even a possibility, talk to an attorney early rather than assuming the DOL process protects your right to sue later.¹¹

Documenting the Violation

Start collecting records as soon as you suspect something is wrong, not after you have been fired or disciplined. What matters:

Pay stubs and attendance records showing you worked 1,250 hours in the prior 12 months.
Copies of medical certifications you submitted for the leave.
A communications timeline covering emails, texts, voicemails, and memos about your leave, including whether you received the eligibility, rights-and-responsibilities, and designation notices.
A personal log of verbal conversations with dates, times, who was present, and what was said. Contemporaneous notes carry weight when official records are thin.
Your employee handbook and any written leave policy. Inconsistencies between the policy and what happened to you strengthen the claim.
Evidence of adverse action: demotion letter, schedule change, a review that contradicts earlier positive feedback, loss of a bonus, or a termination notice.

Most of these live in the HR portal or your personnel file. Request them in writing before the situation turns adversarial, because access gets harder once a dispute is open.

How to File

You have two paths, and they are not mutually exclusive.

Department of Labor Complaint

You can file with the Wage and Hour Division by phone at 1-866-487-9243 or through its online portal.¹² Complaints are confidential. An investigator reviews the allegations and may audit the employer’s records.¹³ It costs you nothing, but the DOL has discretion over which complaints it investigates and how it enforces them. No particular outcome is guaranteed.

Private Lawsuit

You can also sue in federal or state court.¹¹ A lawsuit gives you more control and is the only route to liquidated damages and attorney fees. Because the statute shifts fees to the losing employer, many employment lawyers take strong FMLA cases on contingency, so you pay nothing upfront.

One complication: if you signed a mandatory arbitration agreement at hiring, your employer may try to move the case out of court. Whether the agreement holds up depends on how it was presented. Agreements buried in onboarding paperwork with no explanation are sometimes found unenforceable, but this varies. If you signed one, raise it with an attorney before filing in court.

Whether you go through the DOL, straight to court, or both, the two-year statute of limitations does not pause. Move quickly enough to preserve both options.

1
U.S. Department of Labor. Family and Medical Leave (FMLA)
2
Office of the Law Revision Counsel. 29 USC 2617 – Enforcement
3
U.S. Department of Labor. FMLA Frequently Asked Questions
4
eCFR. 29 CFR 825.220 – Protection for Employees Who Request Leave or Otherwise Assert FMLA Rights
5
U.S. Department of Labor. Fact Sheet 77B – Protection for Individuals Under the FMLA
6
USAGov. The Family and Medical Leave Act
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U.S. Department of Labor. Family and Medical Leave Act Advisor
8
eCFR. 29 CFR 825.312 – Fitness-for-Duty Certification
9
eCFR. 29 CFR 825.300 – Employer Notice Requirements
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eCFR. 29 CFR 825.500 – Recordkeeping Requirements
11
U.S. Department of Labor. Family and Medical Leave Act Advisor – Filing a Private Lawsuit
12
U.S. Department of Labor. How to File a Complaint
13
Worker.gov. Filing a Complaint With the U.S. Department of Labor’s Wage and Hour Division (WHD)