(a) The employee has the choice of:
(1) Filing, or having another person file on his or her behalf, a
complaint with the Secretary of Labor, or
(2) Filing a private lawsuit pursuant to section 107 of FMLA.
(b) If the employee files a private lawsuit, it must be filed
within two years after the last action which the employee contends was
in violation of the Act, or three years if the violation was willful.
(c) If an employer has violated one or more provisions of FMLA, and
if justified by the facts of a particular case, an employee may receive
one or more of the following: Wages, employment benefits, or other
compensation denied or lost to such employee by reason of the
violation; or, where no such tangible loss has occurred, such as when
FMLA leave was unlawfully denied, any actual monetary loss sustained by
the employee as a direct result of the violation, such as the cost of
providing care, up to a sum equal to 26 weeks of wages for the employee
in a case involving leave to care for a covered servicemember or 12
weeks of wages for the employee in a case involving leave for any other
FMLA qualifying reason. In addition, the employee may be entitled to
interest on such sum, calculated at the prevailing rate. An amount
equaling the preceding sums may also be awarded as liquidated damages
unless such amount is reduced by the court because the violation was in
good faith and the employer had reasonable grounds for believing the
employer had not violated the Act. When appropriate, the employee may
also obtain appropriate equitable relief, such as employment,
reinstatement and promotion. When the employer is found in
violation, the employee may recover a reasonable attorney's
fee, reasonable expert witness fees, and other costs of the action from
the employer in addition to any judgment awarded by the court.
[73 FR 68106, Nov. 17, 2008]
