Legal Memorandum: Calculating Damages Award under FMLA

Issue: Under the Family & Medical Leave Act (FMLA), how does a court calculate an award of damages for a successful employee?

Area of Law: Employee Law, Litigation & Procedure
Keywords: Family & Medical Leave Act (FMLA); Damages; Employee
Jurisdiction: Federal
Cited Cases: 852 F.2d 1061; 110 F.3d 635; 284 F.3d 944; 273 F.3d 769; 152 F.3d 729; 306 F.3d 562; 336 F.3d 680; 483 N.W.2d 701; 81 F.3d 798; 650 F. Supp. 299
Cited Statutes: 29 U.S.C. § 2617(a)(1)(A)(i)(I), (ii), (iii) (2008); 29 C.F.R. § 825.400(c) (2008); 29 U.S.C. § 2617(a)(1)(A)(I)(iii); 29 C.F.R. § 825.400(c); 29 U.S.C. § 2617(a)(1)(A)(i)(I); 29 U.S.C.A. §§ 2601 et seq.; 176 A.L.R. Fed. 591, § 2[a] (2002 & Supp. 2009); 29 U.S.C. § 2617(a)(I)(a)(iii)
Date: 01/01/2009

The FMLA provides that an employer who violates the provisions of the Act is liable to the employee affected by such violation for damages equal to the amount of:

·         any wages, salary, benefits, or other compensation denied or lost to the employee by reason of the violation;

·         interest on the above amounts, calculated at the prevailing rate; and

·         an additional amount as liquidated damages, equal to the sum of the above two amounts (lost wages, benefits, and other compensation, plus interest).

29 U.S.C. § 2617(a)(1)(A)(i)(I), (ii), (iii) (2008).  See also 29 C.F.R. § 825.400(c) (2008) (listing the same elements of damages for FMLA violations).  If the employer is able to prove to the satisfaction of the court that the act or omission that violated the FMLA was in good faith, however, and that the employer had reasonable grounds for believing that it was not violating the FMLA, the court may, in its discretion, reduce the amount of the employer’s liability to the amounts determined pursuant to the first two listed items above (lost wages, benefits, and other compensation, plus interest).  29 U.S.C. § 2617(a)(1)(A)(I)(iii).    

The FMLA also provides that “[t]he court in such an action shall, in addition to any judgment awarded to the plaintiff, allow a reasonable attorney’s fee, reasonable expert witness fees, and other costs of the action to be paid by the defendant.”  Id. § […]

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