Daily Labor Report® is the objective resource the nation’s foremost labor and employment professionals read and rely on, providing reliable, analytical coverage of top labor and employment...
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.”
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).
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 email@example.com
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)