National Partnership for Women & Families

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Number of FMLA Lawsuits Spiked From 2012 to 2013

Number of FMLA Lawsuits Spiked From 2012 to 2013

August 11, 2014 — Employees in 2013 filed 877 lawsuits against their employers for allegedly violating the Family and Medical Leave Act, up from 291 in 2012, according to data from the Administrative Office of the U.S. Courts, the Wall Street Journal reports (Palazzolo, Wall Street Journal, 8/8).

Under the Family and Medical Leave Act (PL 103-3), eligible employees are allowed to take up to 12 weeks of unpaid leave annually to care for themselves during an illness, a sick family member or a new child (Women's Health Policy Report, 7/31). The law also prohibits employers from retaliating against employees who take such leave.

In FMLA challenges, employees can recover up to double the amount of any lost wages or the cost of caring for family members if leave was denied. However, plaintiffs cannot be awarded punitive damages.

According to the Journal, FMLA cases require a lower threshold of proof than cases challenging most other employment laws. Labor attorney Jeff Nowak of Franczek Radelet PC explained that, unlike discrimination suits that require proof of an employers' intent to discriminate, plaintiffs in FMLA cases must show that their employers deterred them from taking authorized leave under FMLA or interrupted such leave. He added that many employees are more familiar with FMLA laws today than had been in the past.

Meanwhile, Lisa Horn, director of congressional affairs at the Society for Human Resource Management, said that some employers face significant challenges in accommodating leave under FMLA. She noted that the law does not specify what qualifies as a serious health condition warranting leave under the law, adding, "There are opportunities for misuse, and that has been a real challenge for employers and employees who are left picking up the additional work" (Wall Street Journal, 8/8).

NYT Column: Many Factors Affect Impact of Paid Leave

In related news, the New York Times' Claire Cain Miller writes in "The Upshot" that a "paradox" involving U.S. women's participation in the workforce offers insight "about how to shape maternity leave." She explains that "[w]hen measured by who holds a job, American women are falling behind women in other developed countries," but "the American women who are working tend to have more high-achieving careers."

She notes that the U.S. "is the only country besides Papua New Guinea that mandates maternity leave but does not require that it be paid," while "[o]ther developed countries ... offer paid leave" and "other family-friendly benefits like publicly funded child care and the right to demand part-time work."

While "[e]conomists say paid leave is essential to making it possible for women to work," research has shown "that long paid leaves can also hold back women" by having "negative effects on their job opportunities" if, for example, they voluntarily "scale back" or face discrimination from employers who assume women will take leave, according to Cain Miller. Long leaves also can be "expensive for companies, particularly for jobs that build on training and promotions, and employers" may be hesitant to hire people who might leave for a year at a time, she writes.

Cain Miller suggests that one way to "minimize the career penalty women pay for having children is to stop making parental leave all about mothers" and encourage more fathers to take leave. She also calls for policymakers to take steps to "minimize the penalty women pay ... by pulling levers in both policy and culture around the length of leaves and who takes them" (Cain Miller, "The Upshot," New York Times, 8/9).