FMLA, or Family Medical Leave Act, violations occur when an employee is denied the ability to care for a child, parent, or spouse without the fear of losing his or her job. This act makes it illegal to fire or demote an employee who qualifies for leave under FMLA laws. For over 25 years, the experienced attorneys at the Derek Smith Law Group have helped employees who have been terminated or demoted in violation of FMLA laws receive the justice they deserve.
In 1993, the Clinton administration passed a bill now known as the FMLA. Under this bill, employees who work for a company with 50 or more employees are allowed to take up to 12 weeks of unpaid leave from work as long as they have been employed with the company for 1 year or longer and have worked at least 1,250 hours or 156 days during that 1 year period. The leave would need to be to care for themselves as they undergo medical treatment or recovery, the birth, adoption, or fostering of a child, or to care for an injured or ill child, or parent. Under this law, the employee cannot be terminated or fired, demoted, or removed from group health insurance coverage as per the terms of their employment. When an employer refuses to allow an employee to take this time or refuses to hold a comparable position for the employee or refuses his or her group health coverage be continued while on leave, the employer is violating the laws of the FMLA.
FMLA is the federal law. It does not apply to every employee and it does not provide any provisions for paid medical leave. However, the state of New York offers Paid Family Leave, which is available to all employees of any sized company in New York City and all of the state. In order to be eligible for Paid Family Leave in New York City, you must be employed with a New York employer for at least 30 days. The Paid Family Leave allows an employee to take 10 weeks (which will jump to 12 weeks in January 2021) to care for a child or other family member who is sick or injured. It cannot be used to care for your own medical needs, however, it can be used to care for a newborn child. The pay is a fraction of your normal pay and is paid through payroll deductions.
When an employer denies FMLA (or disability leave) to an employee, he is in clear violation of the FMLA. Other violations of FMLA are ADA violations, pregnancy discrimination, and even disability discrimination. Here are some examples of FMLA violations:
- Firing an employee who is taking FMLA for cancer treatment
- Demoting an employee who is using FMLA to bond with his or her new child
- Denying an employee group health coverage while on FMLA
- Only permitting a woman to take FMLA after the birth of a child
- Not allowing a parent to take FMLA when a child is adopted, or a new foster child moves into the home
- Terminating an employee on FMLA to take care of his injured child
- Terminating an employee on FMLA for taking care of a parent undergoing back surgery
- Forcing an employee to take disability leave before allowing him or her to use FMLA or Paid Family Leave
- Forcing an employee to use his or her paid time off to supplement the difference between his or her Paid Family Leave pay and the employee’s take-home salary.
Under the FMLA, the time limit to file a lawsuit for preventing your use of the FMLA or any retaliation associated with you using the FMLA as allowed by law is two years.
Under the New York Paid Family Leave laws, an employee must provide an employer with a formal written request to take the paid family leave as needed. The employer has 30 days to respond to the request. If the employer does not respond within thirty days, then the employee has 2 years to file a claim with the Worker’s Compensation Board for interfering with an employee’s ability to receive Paid Family Leave. If the employee is terminated while on Paid Family Leave, the employee must write a formal written request to the employer to reinstate his or her job. If that is not answered within 30 days, the employee can then file a claim with the Worker’s Compensation Board within 2 years of the incident.
If you are a victim of FMLA violations, it makes sense to seek remedies from the courts. Some of the remedies available to you in New York City Courts include:
- Reinstatement of employment
- Reinstatement of benefits
- Reinstatement of prior salary
- Reimbursement of related medical and other expenses
- Reimbursement of benefit premiums
- Back pay
- Future pay
- Attorney’s fees
- Pain and suffering
- Emotional distress
- Punitive damages
It is traumatic enough to be the victim of disability discrimination or denied disability leave while employed. Violations of FMLA feel like suffering from a health issue all over again. It makes sense that you want the case related to this violation to be over as soon as possible. A typical FMLA lawsuit can take anywhere from 4 to 6 months to 1 year or longer.
If your employer is willing to negotiate a fair settlement, you may choose to settle out of court. If this is the case, your lawsuit may settle within 4 to 6 months and the case will be over.
However, if your employer does not wish to settle or does not offer a settlement you deem as fair., you may choose to go to trial. Preparation for trial can take 8 months to a year or longer, depending on the details of the case. Then, the case will go to trial, which can last anywhere from a few weeks to a few months.
The FMLA is meant to protect employees and allow them the time needed to care for themselves or their families in times of need. Some things you can do immediately include:
- Contact an experienced New York City FMLA violations attorney today.
- Documents everything. Take notes regarding everything that led up to the FMLA retaliation or interference. Note if there were specific instances of additional discrimination relating to disability, pregnancy, or ADA laws.
- Do not waster time. You only have 2 years to file a claim for FMLA discrimination. Work quickly to gather evidence and make your decision regarding your FMLA violations case.
Taking unpaid medical leave to handle your own disability or a family member’s disability is emotionally and physically draining. No employee should worry about whether they have a job waiting for them back home while going through this time. If you are a victim of FMLA violations in the workplace, the experienced attorneys at the Derek Smith Law Group can help. Contact us today at (212) 587-0760 for a free consultation. We do not collect any money until you win your case.