(a) The FMLA prohibits interference with an employee's rights under
the law, and with legal proceedings or inquiries relating to an
employee's rights. More specifically, the law contains the following
employee protections:
(1) An employer is prohibited from interfering with, restraining,
or denying the exercise of (or attempts to exercise) any rights
provided by the Act.
(2) An employer is prohibited from discharging or in any other way
discriminating against any person (whether or not an employee) for
opposing or complaining about any unlawful practice under the Act.
(3) All persons (whether or not employers) are prohibited from
discharging or in any other way discriminating against any person
(whether or not an employee) because that person has--
(i) Filed any charge, or has instituted (or caused to be
instituted) any proceeding under or related to this Act;
(ii) Given, or is about to give, any information in connection with
an inquiry or proceeding relating to a right under this Act;
(iii) Testified, or is about to testify, in any inquiry or
proceeding relating to a right under this Act.
(b) Any violations of the Act or of these regulations constitute
interfering with, restraining, or denying the exercise of rights
provided by the Act. An employer may be liable for compensation and
benefits lost by reason of the violation, for other actual monetary
losses sustained as a direct result of the violation, and for
appropriate equitable or other relief, including employment,
reinstatement, promotion, or any other relief tailored to the harm
suffered (see Sec. 825.400(c)). "Interfering with" the exercise of
an employee's rights would include, for example, not only refusing to
authorize FMLA leave, but discouraging an employee from using such
leave. It would also include manipulation by a covered employer to
avoid responsibilities under FMLA, for example:
(1) Transferring employees from one worksite to another for the
purpose of reducing worksites, or to keep worksites, below the 50-
employee threshold for employee eligibility under the Act;
(2) Changing the essential functions of the job in order to
preclude the taking of leave;
(3) Reducing hours available to work in order to avoid employee
eligibility.
(c) The Act's prohibition against "interference" prohibits an
employer from discriminating or retaliating against an employee or
prospective employee for having exercised or attempted to exercise FMLA
rights. For example, if an employee on leave without pay would
otherwise be entitled to full benefits (other than health benefits),
the same benefits would be required to be provided to an employee on
unpaid FMLA leave. By the same token, employers cannot use the taking
of FMLA leave as a negative factor in employment actions, such as
hiring, promotions or disciplinary actions; nor can FMLA leave be
counted under "no fault" attendance policies. See Sec. 825.215.
(d) Employees cannot waive, nor may employers induce employees to
waive, their prospective rights under FMLA. For example, employees (or
their collective bargaining representatives) cannot "trade off" the
right to take FMLA leave against some other benefit offered by the
employer. This does not prevent the settlement or release of FMLA
claims by employees based on past employer conduct without the
approval of the Department of Labor or a court. Nor does it
prevent an employee's voluntary and uncoerced acceptance (not as a
condition of employment) of a "light duty" assignment while
recovering from a serious health condition (see Sec. 825.702(d)). An
employee's acceptance of such "light duty" assignment does not
constitute a waiver of the employee's prospective rights, including the
right to be restored to the same position the employee held at the time
the employee's FMLA leave commenced or to an equivalent position. The
employee's right to restoration, however, ceases at the end of the
applicable 12-month FMLA leave year.
(e) Individuals, and not merely employees, are protected from
retaliation for opposing (e.g., filing a complaint about) any practice
which is unlawful under the Act. They are similarly protected if they
oppose any practice which they reasonably believe to be a violation of
the Act or regulations.
[73 FR 68095, Nov. 17, 2008]
