Are You Unknowingly Violating FMLA? Common Employer Missteps That Lead to Costly Lawsuits

Are You Unknowingly Violating FMLA – The Family and Medical Leave Act (FMLA) is a crucial piece of legislation that protects employees’ rights to take unpaid, job-protected leave for specific family and medical reasons. However, many employers unknowingly violate FMLA, leading to costly lawsuits and severe penalties. Understanding common missteps and how to avoid them is essential for compliance and safeguarding your business.

In this article, we’ll explore common employer mistakes under FMLA, provide practical advice, offer clear examples, and guide you on how to stay compliant. Whether you’re an HR professional, business owner, or manager, this guide will help you navigate FMLA requirements confidently.

Are You Unknowingly Violating FMLA

Violating the Family and Medical Leave Act isn’t just a compliance risk—it can lead to costly lawsuits, reputational damage, and workforce dissatisfaction. Thankfully, avoiding these pitfalls is entirely possible with the right approach. By training managers, maintaining clear policies, providing timely notices, handling certifications properly, and consistently applying policies, employers can stay compliant while supporting their teams’ rights.

Understanding FMLA Basics

The FMLA provides eligible employees the right to take up to 12 weeks of unpaid leave for specific reasons, such as:

• Birth and care of a newborn
• Adoption or foster care placement
• Caring for a spouse, child, or parent with a serious health condition
• The employee’s own serious health condition
• Certain circumstances arising from a family member’s military service

The key benefit? Job protection. Employees must be reinstated to the same or an equivalent role after their leave ends.

However, the law’s complexity often results in employers making costly errors.

Common Employer Missteps That Lead to FMLA Violations

1. Inadequate Manager Training

One of the biggest mistakes is failing to train managers and supervisors on FMLA policies. Often, managers are the first point of contact when employees request leave. If they’re unaware of FMLA rules, they might:

• Deny leave improperly
• Fail to recognize a qualifying condition
• Discourage employees from applying

Example: A manager refuses leave because the employee doesn’t use the words “FMLA,” even though the reason qualifies. This is a violation.

Solution:

• Conduct mandatory FMLA training for all supervisors
• Provide clear guidelines on spotting FMLA-eligible situations

2. Failure to Provide Timely Notices

Employers must provide written notice to employees within five business days of learning they may qualify for FMLA leave. This includes:

• Eligibility notice
• Rights and responsibilities notice
• Designation notice

Mistake: Missing deadlines or failing to notify employees of their rights can be deemed as interference.

Solution:

• Implement an automated notification process
• Keep records of all communication for compliance

3. Retaliating Against Employees Taking FMLA Leave

Retaliation is strictly prohibited. Any negative employment action taken because an employee exercised FMLA rights can result in lawsuits.

Example: Demoting an employee upon return from FMLA leave, even if performance hasn’t changed, may be seen as retaliation.

Solution:

• Document objective, performance-based decisions
• Conduct periodic audits to ensure fairness post-leave

4. Mishandling Medical Certifications

Employers are allowed to request medical certification from employees to confirm the need for leave. However, denying leave immediately due to incomplete certifications without giving a chance to correct it is a violation.

Solution:

• Allow at least 7 days to fix deficiencies (as per DOL guidelines)
• Use standardized forms like the DOL’s WH-380-E Form

5. Not Reinstating Employees Properly

Under FMLA, returning employees must be reinstated to the same job or an equivalent position with:

• Same pay
• Same benefits
• Same working conditions

Mistake Example: Offering a different role with lower pay violates the law.

Solution:

• Have a written return-to-work policy
• Ensure HR verifies equivalency of any reassigned positions

6. Inconsistent Application of Policies

Applying FMLA policies inconsistently can open doors to discrimination claims. For instance, approving leave for one employee but denying a similar request from another without clear reasoning can trigger lawsuits.

Solution:

• Establish clear, written criteria for handling leave requests
• Apply them uniformly to all employees

7. Failing to Understand State-Specific Leave Laws

Some states have family leave laws offering more generous protections than the federal FMLA. Overlooking these can result in non-compliance.

Example: California offers Paid Family Leave benefits in addition to FMLA protections.

Solution:

• Regularly review state-specific requirements
• Align your policy with both federal and state laws

8. Inadequate Record-Keeping

Lack of documentation can significantly weaken your defense in case of an investigation or lawsuit.

Solution:

• Maintain complete records, including requests, certifications, communications, and decisions, for at least three years
• Utilize digital HR systems for better tracking and storage

Why These Mistakes Are Costly?

FMLA lawsuits are expensive. Employers found in violation may face:

• Back pay and benefits
• Liquidated damages equal to the back pay amount
• Reinstatement or promotion
• Attorney fees and court costs

According to the U.S. Department of Labor, FMLA violations cost businesses millions in settlements annually.

Pro Tip: Many violations stem from administrative oversights, not malice. But courts and regulators treat them seriously nonetheless.

Real-Life Case Example: The $1.3 Million FMLA Settlement

In 2020, an Illinois employer settled an FMLA lawsuit for $1.3 million after failing to reinstate several employees properly following leave. The employer demoted employees or cut their pay, assuming it was within their rights. The court found otherwise, reinforcing the importance of compliance.

Practical Steps to Ensure FMLA Compliance

Here’s a clear, step-by-step approach:

Step 1: Develop a Written FMLA Policy

• Include eligibility, request process, and employee rights
• Distribute it to all employees

Step 2: Train Managers & Supervisors Regularly

• Provide annual FMLA training
• Include real-world case studies and examples

Step 3: Implement a Leave Tracking System

• Track leave taken, dates, certifications, and notices
• Use HR software to automate reminders and documentation

Step 4: Communicate Clearly & Promptly

• Send all required notices within 5 days
• Explain employees’ rights without discouraging leave

Step 5: Conduct Annual Compliance Audits

• Review FMLA leave cases
• Check for any patterns of discrimination or mishandling

Upcoming Changes to Garnishment Laws That Could Impact Your Wallet

Employer’s Handbook: Ensuring FMLA Compliance Amid Recent Regulatory Changes

State vs. Federal Leave: Navigating the Complexities of FMLA and State Laws in 2025

FAQs

1. What happens if an employee doesn’t mention FMLA specifically when requesting leave?

Employees are not required to mention FMLA explicitly. If they provide enough information suggesting the need for leave under FMLA, the employer must evaluate the request accordingly.

2. Can I require employees to use vacation or sick leave during FMLA leave?

Yes, employers can require employees to substitute paid leave (vacation/sick) for unpaid FMLA leave, but this must be outlined in the company policy.

3. How long do I need to keep FMLA records?

Employers must retain all FMLA-related records for three years, including certifications, notices, and correspondence.

4. Can part-time employees qualify for FMLA leave?

Yes, as long as they’ve worked 1,250 hours in the past 12 months and the employer has 50 or more employees within a 75-mile radius.

5. What are the penalties for violating FMLA?

Penalties may include back pay, liquidated damages, attorney fees, and reinstatement orders, with potential lawsuits costing companies thousands or millions of dollars.