How to File a Complaint When Your Employer Violates Your FMLA Rights

What counts as FMLA interference or retaliation?

The Family and Medical Leave Act prohibits employers from interfering with, restraining or denying the exercise or attempted exercise of an FMLA right. It also protects individuals from discrimination or retaliation connected with exercising FMLA rights or participating in an FMLA complaint or proceeding.

Examples identified by the U.S. Department of Labor include refusing to authorize qualifying FMLA leave, discouraging an employee from using FMLA leave, manipulating work hours to avoid FMLA responsibilities, using FMLA leave as a negative factor in employment decisions, and counting protected FMLA leave under a no-fault attendance policy.

If your immediate issue is how to request protected leave rather than how to report a violation, see the separate procedure on applying for FMLA leave.

Where do you file an FMLA complaint?

For most workers covered by the federal FMLA, complaints are handled by the U.S. Department of Labor Wage and Hour Division (WHD). WHD says you can call 1-866-487-9243 for assistance and to file a complaint. You can also contact or visit a local WHD office.

The Department provides an online contact channel for general questions, but its complaint instructions direct workers to call WHD to file a complaint. For that reason, this procedure does not treat the general online inquiry form as a complete online FMLA complaint filing system.

WHD administers and enforces the FMLA for private-sector, state and local government employees and some federal employees. Most federal and certain congressional employees have different enforcement arrangements, so a worker in those groups should confirm the agency with jurisdiction over the claim.

What information should you gather before contacting WHD?

WHD identifies basic worker and employer information as useful when filing a complaint. Prepare:

• your name;
• your address and phone number or another reliable way WHD can contact you;
• the employer's name;
• the employer's location and phone number;
• the name of a manager or owner;
• the type of work you performed; and
• information explaining the alleged violation.

For an FMLA complaint, it is particularly useful to organize the circumstances of your leave request and the employer's response. Relevant records may include your leave request, eligibility or designation notices, medical-certification communications, emails or messages with supervisors or human resources, attendance records, disciplinary notices, termination documents and your own timeline of events.

You do not need to wait until every possible document is collected before contacting WHD. The agency advises workers to provide as much useful information as possible and will work with the complainant to determine the appropriate next steps.

Is an FMLA complaint free and confidential?

Yes. WHD states that its complaint and investigation services are free. WHD also states that complaints are confidential. The complainant's name and the nature of the complaint are generally not disclosed, subject to limited circumstances such as when disclosure is necessary to pursue an allegation with the complainant's permission or when disclosure is ordered by a court.

WHD's complaint-information page also states that its services are free and confidential regardless of immigration documentation status.

Can your employer retaliate because you complained?

No. Federal law prohibits retaliation connected with protected FMLA activity. An employer may not discharge or otherwise discriminate against a person for opposing or complaining about an unlawful FMLA practice. Protection also applies to filing a charge, providing information in an FMLA inquiry or proceeding, or testifying in one.

The Department of Labor specifically advises workers to contact WHD if an employer retaliates against them for exercising protected rights, filing a complaint or cooperating with an investigation.

If the conduct also involves discrimination based on a protected characteristic rather than only FMLA rights, the separate process for an EEOC employment discrimination charge may be relevant. These are separate federal enforcement processes and one should not be assumed to replace the other.

How long do you have to act?

The FMLA provides a 2-year limitations period from the last event constituting the alleged violation. For a willful violation, the statute provides a 3-year period.

These statutory periods govern actions under the FMLA and should not be treated as a reason to wait. Contact WHD as soon as practical after a suspected violation, particularly because investigating and resolving a complaint can take time.

What happens after you contact the Wage and Hour Division?

WHD says it will work with you to answer questions and determine whether an investigation is the appropriate course of action. When WHD conducts an investigation, its typical process can include an initial conference with the employer, private employee interviews, review of employer records and a final conference concerning any violations found and corrective action.

There is no single published processing time for an FMLA complaint. How long a matter takes depends on the circumstances and the enforcement steps required.

Is a WHD complaint the only enforcement option?

No. The Department of Labor states that a worker who believes FMLA rights were violated may file a complaint with WHD or may be able to bring a private civil action against the employer. The FMLA authorizes remedies that can include lost wages or benefits and appropriate equitable relief such as employment, reinstatement or promotion, depending on the case.

Special jurisdictional or sovereign-immunity rules can affect certain public employees. If you are considering litigation, the statutory deadlines and circumstances of the individual case can matter significantly.

Common mistakes to avoid

• Waiting too long to contact WHD because you expect the employer to reverse its decision on its own.
• Providing only a general statement that the employer was unfair without explaining the FMLA request, employer response and relevant dates.
• Discarding emails, notices, attendance records or disciplinary documents that could help explain what happened.
• Assuming that only an outright denial can violate the FMLA. Interference, discouragement and retaliation can also be prohibited.
• Assuming that an employer may punish you for contacting or cooperating with WHD.
• Confusing an FMLA enforcement complaint with the original process for requesting FMLA leave from an employer.