Texas employment attorney explains what is FMLA

FMLA is the Family and Medical Leave Act, a federal law that provides certain employees leave protections. FMLA provides twelve weeks of leave in a twelve month period. The twelve month period can be a fixed twelve month period, such as the calendar year, or a rolling twelve month period so the beginning of an FMLA leave starts a rolling twelve month period.

To be eligible for FMLA leave your employer must employ at least fifty employees in at least twenty weeks in the year or prior year of the leave request. As a result, FMLA typically does not apply to small employers. FMLA regulations can be confusing. If you are in Texas and dealing with an FMLA situation it may be useful to work with an employment lawyer. If you requested FMLA leave and the employer wrongfully denied your leave then you definitely need to talk to an employment attorney about FMLA.

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FMLA Leave Eligibility in Texas

FMLA leave is available for four conditions:

The birth of a child to the employee, regardless of whether the employee is the mother or father;
The employee is adopting a child;
The employee has a serious medical condition requiring leave; or
For the employee to take care of a family member with a serious medical condition.

FMLA leave can be continuous or intermittent. If FMLA leave is for the childbirth or adoption, it must be continuous leave. If FMLA leave is for the employee’s serious health condition or a family member’s condition, the leave can be intermittent so the employee can break up the leave time as appropriate for the condition. After the leave ends, the employee is entitled to return to the same job at the same position, shift and wages, or a substantially similar job with the same benefits, pay and conditions of employment.

FMLA Certification in Texas

An employer can require certification of the condition. In the case of a serious medical condition of an employee or employee’s family member, the certification must be completed by a medical professional and must describe the condition. An employer can contest the certification on narrow grounds. The employer cannot arbitrarily deny certification. An employee failing to provide a complete certification form, if requested by the employer, will not be protected by FMLA.

An employee also must provide notice to the employer of an upcoming need for leave if possible. For example, a pregnant employee can inform the employer that childbirth is expected in a certain time period; however, an employee who has a heart attack cannot give prior notice.

FMLA leave is not paid leave, although an employer can chose to pay for leave time. Additionally, an employer can require the employee to exhaust sick and vacation time at the beginning of FMLA leave. The employer must also maintain benefits for the employee, including health insurance. The employee is still responsible for paying premiums.

FMLA Violation Remedies in Texas

FMLA provides remedies for employees when employers violate FMLA by refusing leave or discriminating against an employee for requesting or exercising FMLA rights. Sometimes employers deny leave because they improperly reject the serious medical condition or because they want the employee to work during the requested leave period. Other employers will refuse leave to try to force an employee to choose between the FMLA leave or quitting. Each of these situations violates FMLA.

Employers also violate FMLA when they refuse to reinstate an employee after leave, give the employee an inferior position upon returning, or treat the employee poorly based upon the leave, such as giving the employee less favorable work assignments, or lesser bonuses. FMLA also prohibits retaliation, including opposing FMLA violations and reporting violations, even if you are not the employee requesting leave.

For more information about FMLA eligibility, check out this video:

Hiring an employment attorney for FMLA in Texas

FMLA contains a range of technical requirements to ensure employers comply with the protected medical leave. When an employer fails to meet these technical requirements and abuses the employee for invoking FMLA the employee can run into problems. Employers retaliate and interfere with FMLA rights. This can result in demotions, pay cuts, loss of benefits, wrongful termination and other employment consequences.

FMLA retaliation claims generally occur at work when the employee returns from FMLA leave or after requesting FMLA leave. Retaliation claims under FMLA include hostile work environment, demotions, wrongful termination, pay cuts, benefit reductions, etc. They may arise after the employee returns from FMLA leave or when then employee requests leave, even if the employee is denied leave.

The most common FMLA retaliation claims arise as wrongful termination. Here the employee returns from leave or requests leave and is discharged for requesting or taking FMLA. The employer often conjures a false reason to mask the wrongful termination, such as poor performance or absenteeism. This is known as “pretext” for the termination.

Interference claims often involve the technical requirements for FMLA. In these types of claims the employee often alleges the employer refused FMLA leave by not complying with specific timing or documentary regulations. As a result of the interference, the employee could not take FMLA or could not receive the proper medical care intended.

In any case, an employee who believes he or she has an FMLA claims should speak with a Texas employment attorney.

Common FMLA claims in Texas

FMLA claims generally come in two varieties: interference and retaliation. Interference claims generally occur when the employer interferes with taking FMLA leave, such as denying leave, refusing to cooperate in FMLA requests and improperly contacting the employee while on FMLA leave. FMLA retaliation claims generally occur at work when the employee returns from FMLA leave or after requesting FMLA leave. Retaliation claims under FMLA include hostile work environment, demotions, wrongful termination, pay cuts, benefit reductions, etc. They may arise after the employee returns from FMLA leave or when then employee requests leave, even if the employee is denied leave.

In any case, an employee who believes he or she has an FMLA claims should speak with a Texas employment attorney.

Why hire a Texas employment attorney for FMLA claims

Texas employment attorneys routinely help clients with FMLA claims, both interference and retaliation. There is a good reason for this above and beyond normal reasons to hire a labor lawyer for an employment claim. FMLA claims are complex. If you read FMLA judicial opinions you will find many of the cases turn on technical FMLA regulations. Even employer-side defense firms, some of the biggest in the nation, gets these wrong. These are very good employment attorneys with a lot of experience, training and resources. If they can blow it so often, one must seriously consider the affects of trying an FMLA claim without an attorney.

You might ask: what can an employment attorney do for me?

A Texas employment attorney can provide three key services:

Assess the merits of a claim;
Advice on next steps in an FMLA situation;
Prosecute or litigate FMLA claims.

One of the greatest problems with FMLA claims is that not all claims are a good fit for a lawsuit. There are many reasons for this.

The employee may not have the financial resources to proceed;
The employee’s claim may be good but not great;
The financials may not tilt in favor of spending the money to litigate;
The technical details involved may make the case more complicated than what the facts can prove;
The employee would rather not spend years in litigation;
The employee wants a different resolution.

What if my Texas employer violates FMLA?

The Family and Medical Leave Act (FMLA) protects the rights of employees, who work at employers with fifty or more employees, to job protection for unpaid leave up to twelve weeks in a twelve month period for the birth and care of a newborn, adoption of a child, to care for the employee’s spouse, the employee’s children and parent, who has a serious condition, the employee’s own health when a serious medical condition impairs the employee’s ability to perform the essential functions of the job and a couple very specific situations involving service in the military.

FMLA leave almost always requires advance notice to your employer and it can assess whether it will grant FMLA leave. The rules around FMLA are more complex than many other employee protection laws. There are medical issues involved and clear rules do not always exist. If you believe you have a claim under FMLA then you should speak with Texas FMLA lawyers right away.

What remedies are available in an FMLA lawsuit in Texas?

In most FMLA lawsuits in Texas there are only a few types of relief for a plaintiff. The most common types are lost wages and attorney’s fees. Lost wages include what has been lost up to the point the plaintiff receives recovery (back pay) plus future wages lost due to a demotion or wrongful termination (front pay). Attorney’s fees are awardable to the prevailing party.

In some FMLA cases the employee may recover liquidated damages. Liquidated damages are like punitive damages. They may receive up to twice actual damages. Other types of financial relief include court costs and mental anguish.

In rare cases an employee may prefer reinstatement over monetary recovery. Reinstatement puts the employee in the position he or she would have if not for the employer’s bad acts. Reinstatement is a rare remedy. Often employees do not want to return to a job where they were fired or demoted. That makes tremendous sense.

When employees want reinstatement a problem often arises that the employer filled the position with another employee. That means reinstated the harmed employee bumps the innocent replacement employee to a lost job opportunity. Judges do not like doing this without good reason. Often courts do not order reinstatement for this reason. When reinstatement occurs it is often because:

The employer has a suitable opening for the employee; or
The parties agreed to a remedy that avoids harming an innocent employee.