Workers Going Straight to Court to Assert FMLA Rights

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By Jay-Anne B. Casuga

Oct. 21 — Employees increasingly are turning to private lawsuits to allege violations of the Family and Medical Leave Act instead of bringing administrative complaints to the Labor Department, according to government data.

The shift may be attributed in part to workers becoming more knowledgeable about their rights under the FMLA, which doesn’t require them to file with a federal agency before litigating, employment lawyers told Bloomberg BNA.

“They don’t need to deal with the Labor Department,” Jeff Nowak, an attorney with Franczek Radelet in Chicago and co-chairman of the firm’s labor and employment practice, told Bloomberg BNA Oct. 19. “I think both employees and employee-side counsel have become wise to that fact.”

Private Complaints Up, WHD Complaints Down

In 2015, 1,181 private complaints were filed in federal district courts, up from 404 in 2012, according to statistics from the Administrative Office of the U.S. Courts.

The number of private FMLA cases terminated at the district court level also rose in that time to 1,099 in 2015 from 106 in 2012.

During the same period, employees submitted fewer FMLA complaints to the DOL’s Wage and Hour Division, according to agency enforcement statistics.

The division received 1,723 FMLA complaints in fiscal year 2012; that number dropped to 1,419 in fiscal 2015.

The rise in private cases has brought with it a growing number of open litigation questions (see related story).

DOL Focuses on Strategic Enforcement

The DOL receives many questions about the FMLA that don’t necessarily turn into formal complaints, agency officials told Bloomberg BNA Oct. 14.

The agency screens complaints and uses its enforcement resources strategically to determine if an employee’s issue can best be addressed through an agency investigation or by referring it to private litigation, officials said, speaking on condition of anonymity.

The agency also uses other channels to ensure FMLA compliance, they said, such as outreach to employers and employees and their advocates. It can elect to bring an FMLA lawsuit in federal court on behalf of employees. However, those types of lawsuits have been scarce in recent years.

The federal government brought suit as the plaintiff only eight times between 2012 and 2015, according to Administrative Office data.

One explanation for those low numbers could be the WHD’s focus on wage and hour issues under the Obama administration, Darrell VanDeusen, an attorney with Kollman & Saucier in Timonium, Md., and an author of a treatise on the FMLA, told Bloomberg BNA Oct. 12.

The agency hasn’t spent as much time on the FMLA in comparison to the Fair Labor Standards Act, he said.

Another explanation could be that the “vast majority” of FMLA administration isn’t difficult for employers or employees and that new legal developments that crop up are outliers, VanDeusen said.

“Where there are issues, individual plaintiff’s lawyers can handle FMLA cases as well as anybody,” he said.

To contact the reporter on this story: Jay-Anne B. Casuga in Washington at jcasuga@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com

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