Chapter § 1-64 29 CFR § 825.400. Enforcement, General Rules

• Jurisdiction: United States

1-64 29 CFR § 825.400. Enforcement, General Rules

(a) The employee has the choice of:

(1) Filing, or having another person file on his or her behalf, a complaint with the Secretary of Labor, or

(2) Filing a private lawsuit pursuant to section 107 of FMLA.

(b) If the employee files a private lawsuit, it must be filed within two years after the last action which the employee contends was in violation of the Act, or three years if the violation was willful.

(c) If an employer has violated one or more provisions of FMLA, and if justified by the facts of a particular case, an employee may receive one or more of the following: wages, employment benefits, or other compensation denied or lost to such employee by reason of the violation; or, where no such tangible loss has occurred, such as when FMLA leave was unlawfully denied, any actual monetary loss sustained by the employee as a direct result of the violation, such as the cost of providing care, up to a sum equal to 26 weeks of wages for the employee in a case involving leave to care for a covered service member or 12 weeks of wages for the employee in a case involving leave for any other FMLA qualifying reason. In addition, the employee may be entitled to interest on such sum, calculated at the prevailing rate. An amount equaling the preceding sums may also be awarded as liquidated damages unless such amount is reduced by the court because the violation was in good faith and the employer had reasonable grounds for believing the employer had not violated the Act. When appropriate, the employee may also obtain appropriate equitable relief, such as employment, reinstatement and promotion. When the employer is found in violation, the employee may recover a reasonable attorney's fee, reasonable expert witness fees, and other costs of the action from the employer in addition to any judgment awarded by the court.

1-64:1 Commentary

1-64:1.1 Does Filing a Complaint Operate as an Election of Remedies, Precluding an Employee From Filing Suit?

Almost all employment law statutes have an administrative remedy, whereby an employee may file a complaint with a governmental agency. The FMLA is no different and provides that an employee may file a complaint with the Department of Labor. The question is whether the option of filing such a complaint operates as an election of remedies, precluding an employee from filing suit.

• Wilson v. Dallas Indep. Sch. Dist., No. CA3:97-CV-0281-BC, 1998 U.S. Dist. LEXIS 1415 (N.D. Tex. Jan.

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