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FMLA reinstatement rights and liquidated or double damages

It is illegal for an employer to interfere with an employee’s rights under the Family Medical Leave Act (FMLA). The FMLA prohibits an employer from interfering with an employee’s right to 12 weeks of leave. The FMLA also protects an employee’s right to reinstatement after the employee completes the legally protected leave.

The employee is not required to prove intentional misconduct to make out a claim for illegal interference with FMLA rights. The employer’s subjective intent is not relevant. Because the issue is the right to an entitlement, the employee is due the benefit if the statutory requirements are satisfied, regardless of the intent of the employer.

An FMLA interference claim is not the same as FMLA retaliation or discrimination. An employer can’t justify its interference by claiming it had a legitimate business reason for its decision.

When an employer interferes with an employee’s right to reinstatement, there is a presumption of an entitlement to liquidated damages. Liquidated damages are a doubling of the amount of lost wages.“Because the employer bears the burden of proof, the statute creates a ‘strong presumption in favor of awarding liquidated damages.’” PagaN v. ColoN v. Walgreens of San Patricio, Inc., 697 F.3d 1, 12-13 (1st Cir. 2012). The employer can only avoid liquidated damages by proving by a preponderance of the evidence that it reasonably believed that it was legally compliant and that it acted in good faith. E.g., the employee did not comply with the FMLA notice requirements, or that the employee did not use FMLA for medical reasons.

Pamela A. Smith
Law Office of Pamela A. Smith
233 Needham Street, Suite 540
Newton, MA 02464


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