The Family and Medical Leave Act (FMLA) provides eligible employees with job-protected leave for qualifying family and medical reasons. However, employers don’t always comply with their FMLA obligations, leaving employees vulnerable when they need protection most. The analysis should also account for accommodation-related termination when a disability, pregnancy limitation, medical restriction, or schedule change request came before the firing.
At BT Law Group, our employment law attorneys assist Florida employees whose FMLA rights have been violated. Understanding what constitutes an FMLA violation can help you recognize when your rights are being infringed upon and take appropriate action.
What Is the FMLA and Who Does It Protect?
The FMLA entitles eligible employees to take up to 12 workweeks of unpaid, job-protected leave per 12-month period for specific family and medical reasons. During FMLA leave, employers must maintain employees’ health benefits as if they were still working. Those records may also matter for reporting harassment if the worker complained about harassment before the discipline, demotion, or firing.
Under 29 U.S.C. § 2612, qualifying reasons for FMLA leave include:
- The birth of a child and care for the newborn within one year of birth
- The placement of a child for adoption or foster care within one year of placement
- Caring for a spouse, child, or parent with a serious health condition
- A serious health condition that makes the employee unable to perform job functions
- A qualifying exigency related to a spouse, child, or parent on covered active duty or call to covered active duty status
Eligible employees who are the spouse, child, parent, or next of kin of a covered servicemember with a serious injury or illness may take up to 26 workweeks of leave during a single 12-month period.
Which Employers Must Follow the FMLA?
The FMLA applies to all public agencies, including state, local, and federal employers, as well as local education agencies such as public and private elementary and secondary schools. Under 29 U.S.C. § 2611(4), private sector employers are covered if they employed 50 or more employees in 20 or more workweeks in the current or preceding calendar year. Joint employers and successors of covered employers are also subject to the law.
Many Miami employers meet this threshold. If you work for a private company, confirm whether your employer had 50 or more employees on its payroll during the relevant period. Public agencies are covered employers regardless of size, but covered employer status and individual employee eligibility are separate questions.
Which Employees Qualify for FMLA Leave?
Not every employee is eligible for FMLA leave. To qualify, you must meet three requirements under 29 U.S.C. § 2611(2):
- You have worked for the employer for at least 12 months (the months do not need to be consecutive)
- You have worked at least 1,250 hours during the 12-month period immediately before the leave starts
- You work at a location where the employer has at least 50 employees within a 75-mile radius
Employees who do not meet these requirements are generally not entitled to FMLA leave. Because employer coverage and employee eligibility are separate questions, both should be reviewed before determining whether the FMLA applies to a specific leave request.
If you are unsure whether you meet the eligibility requirements for FMLA leave, attorney Jason D. Berkowitz can review your employment history and advise you on your rights.
What Are the 8 Most Common FMLA Violations?
Section 105 of the FMLA and 29 CFR § 825.220 prohibit employers from interfering with, restraining, or denying the exercise of FMLA rights. The DOL’s Fact Sheet #77B identifies several categories of prohibited employer conduct. Below are eight common FMLA violations that may arise in employer leave disputes.
1. Denying Valid FMLA Leave Requests
Some employers wrongfully deny legitimate FMLA leave requests despite employees meeting all eligibility requirements. This might happen because the employer doesn’t understand their obligations or is attempting to avoid them.
Example: After providing sufficient medical documentation for a serious health condition, your employer denies your FMLA request, claiming your condition doesn’t qualify, even though it clearly meets the definition under the law.
2. Failing to Provide Required Notices
Employers must notify employees of their FMLA rights and responsibilities. This includes displaying the FMLA poster in the workplace and giving specific notices when an employee requests FMLA leave.
Example: Your employer never informs you of your FMLA eligibility after you request leave for a qualifying reason, causing you to miss out on important protections.
3. Interfering with FMLA Rights
Employers cannot interfere with an employee’s exercise of FMLA rights. This includes, for example, discouraging employees from taking leave, manipulating employment records to avoid FMLA obligations, or using FMLA leave as a negative factor in employment decisions.
Example: Your supervisor hints that taking FMLA leave would be “looked down upon” or suggests you should work from home instead of taking leave for your medical treatment.
4. Retaliating Against Employees for Using FMLA
Retaliation for exercising FMLA rights is prohibited . Employers cannot use an employee’s FMLA leave as a factor in employment decisions such as terminations , promotions, assignments, or discipline. A wrongful termination lawyer can review whether FMLA retaliation or termination turns a leave dispute into a broader legal claim.
Example: After returning from FMLA leave, you find yourself reassigned to less desirable shifts, earning less money, or passed over for a promotion you were previously on track to receive.
5. Failing to Reinstate Employees to Same or Equivalent Position
When employees return from FMLA leave, employers are generally required to restore them to their original position or an equivalent one with the same pay, benefits, and working conditions.
Example: You return from leave to find you’ve been demoted to a position with fewer responsibilities, different working hours, or reduced pay or benefits.
6. Counting FMLA Leave as an Absence Under No-Fault Attendance Policies
Employers cannot count FMLA leave under no-fault attendance policies, where employees receive points or demerits for absences regardless of the reason.
Example: Despite your FMLA-protected absence, your employer counts the days against you in their attendance tracking system, bringing you closer to disciplinary action. Those records may also matter for reporting harassment if the worker complained about harassment before the discipline, demotion, or firing.
7. Requiring More Medical Information Than Allowed
While employers can request medical certification for FMLA leave, they cannot demand more information than what is permitted under the law.
Example: Your employer insists on seeing your complete medical records instead of accepting the standard certification form completed by your doctor.
8. Misclassifying Employees to Avoid FMLA Obligations
Some employers wrongfully classify employees as independent contractors or manipulate employment records to make it appear employees don’t meet FMLA eligibility requirements.
Example: Despite working full-time hours for over a year, your employer claims you haven’t met the 1,250-hour requirement by failing to properly track or acknowledge all your work hours.
| Violation | Description | Legal Basis |
|---|---|---|
| Refusing to authorize leave | Denying FMLA leave to an eligible employee | 29 CFR § 825.220(b) |
| Retaliation | Termination, demotion, or adverse action for requesting, using, or attempting to use leave | 29 CFR § 825.220(c) |
| No-fault attendance counting | Assessing attendance points for FMLA absences | 29 CFR § 825.220(c) |
| Discouraging leave use | Pressuring employees not to request or take leave | 29 CFR § 825.220(b) |
| Manipulating work hours | Reducing hours to make employee ineligible | 29 CFR § 825.220(a) |
| Negative employment decisions | Using leave history in promotions, discipline, or layoffs | 29 CFR § 825.220(c) |
| Failing to provide notices | Not providing required general, eligibility, rights and responsibilities, or designation notices | 29 CFR § 825.300 |
| Denying job restoration | Refusing to restore employee to same or equivalent position | 29 U.S.C. § 2614(a) |
Key Takeaway: FMLA violations may involve direct leave denial, retaliation, or more subtle interference, such as discouraging leave, counting protected absences, manipulating hours, or failing to restore an employee to the same or an equivalent position.
What Is the Difference Between FMLA Interference and Retaliation?
FMLA claims fall into two distinct legal theories: interference and retaliation.
Interference arises under 29 U.S.C. § 2615(a)(1), which prohibits employers from interfering with, restraining, or denying the exercise of any FMLA right. To prove interference, the employee must show that they were entitled to an FMLA benefit and that the employer denied or restricted it. The employer’s intent does not control an interference claim. If the employer denied protected leave, failed to restore the employee when restoration was required, or otherwise blocked the employee from exercising an FMLA right, the employee may have an interference claim.
Retaliation claims focus on whether the employer punished the employee for requesting, using, or attempting to use FMLA leave. FMLA regulations prohibit employers from discriminating or retaliating against employees for exercising or attempting to exercise FMLA rights. To prove retaliation, the employee must show:
- They engaged in protected activity, such as requesting leave,
- The employer took an adverse employment action, and
- The protected activity caused the adverse action.
In Eleventh Circuit cases based on circumstantial evidence, courts generally evaluate FMLA retaliation claims under the McDonnell Douglas burden-shifting framework.
In practice, many FMLA cases involve both theories. For example, if an employer denies an employee’s leave request and then fires the employee for complaining about the denial, both interference and retaliation claims may apply.
Key Takeaway: Interference claims focus on whether the employer denied an FMLA benefit, regardless of intent. Retaliation claims focus on whether the employer punished the employee for exercising FMLA rights. Many Miami FMLA cases involve both theories simultaneously.
Can an Employer Terminate You During FMLA in Florida?
Florida generally follows the at-will employment rule, which means an employer may usually terminate an employee for any lawful reason or no reason. However, at-will employment does not override federal protections. Under the FMLA, an employer cannot fire an employee for requesting or taking protected leave. Termination motivated by FMLA leave may support an FMLA retaliation claim, regardless of Florida’s at-will doctrine.
That said, the FMLA does not grant employees absolute immunity from termination while on leave. An employer may terminate an employee during the FMLA leave period if the termination is based on a legitimate, non-retaliatory reason that is unrelated to the leave. For instance, if a company conducts a bona fide layoff that eliminates the employee’s position, and the layoff decision was made independently of the employee’s leave status, the termination may be lawful.
The question is whether the employee would have been terminated regardless of the FMLA leave. If the timing, documentation, or circumstances suggest that the leave was a factor in the decision, the employee may have grounds for an FMLA claim. Miami employees who are fired during or shortly after FMLA leave should consult an attorney promptly, because close timing can be relevant evidence when it is supported by the facts.
Key Takeaway: Florida’s at-will employment doctrine does not allow employers to fire workers for taking FMLA leave. While termination during leave is not automatically unlawful, the employer should be able to show that the decision would have happened regardless of the employee’s protected leave.
FMLA Violations Attorney in Miami: BT Law Group, PLLC
Jason D. Berkowitz, Esq.
Jason D. Berkowitz is a Miami-based labor and employment attorney who litigates and tries cases in federal and state courts, before administrative agencies, and in arbitration, including American Arbitration Association proceedings. His employment practice includes discrimination, harassment, retaliation, wrongful termination, wage and hour disputes, misclassification, failure to accommodate, restrictive covenants and trade secrets, breach of contract, related Florida tort and common-law claims, and disputes involving the FMLA, FLSA, ADA, Title VII, Florida Civil Rights Act, Florida Whistleblower Act, and other employment laws.
Jason works directly with employees whose employers may have violated their FMLA rights, whether through leave denial, job loss, or retaliation after requesting protected leave. Before representing workers, he represented management exclusively at a national labor and employment firm, including Fortune 100 companies, giving him practical insight into how employers defend workplace claims. He earned his J.D., cum laude, from the University of Miami School of Law and his B.A. from Tufts University, and he is admitted in Florida, the U.S. District Courts for the Southern, Middle, and Northern Districts of Florida, and the U.S. Court of Appeals for the Eleventh Circuit.
Anisley Tarragona, Esq.
Anisley Tarragona is a Miami-based litigator focused on resolving employment disputes and protecting workers’ rights. She represents employees in cases involving sexual harassment, wrongful termination, unpaid wages, discrimination, retaliation, FMLA disputes, and other workplace violations.
Anisley works with employees facing FMLA-related workplace problems, including denied leave, termination, retaliation, or other conduct that may interfere with protected medical leave rights. Before representing workers, she represented management exclusively at a national labor and employment firm, giving her insight into how employers, their attorneys, and insurance companies approach and value workplace disputes. She earned her J.D. from the University of Miami School of Law and her B.S.B.A. from the University of Central Florida, and she is admitted in Florida, the U.S. District Courts for the Southern, Middle, and Northern Districts of Florida, and the U.S. Court of Appeals for the Eleventh Circuit. Born and raised in Cuba, she is fluent in Spanish and frequently advises Spanish-speaking clients.
Does Florida Have Additional FMLA Protections?
Florida does not have a broad private-sector family and medical leave law that mirrors the federal FMLA. For Florida private-sector employees who work for covered employers and meet the federal eligibility requirements, the federal FMLA is the primary source of job-protected medical and family leave rights.
Limited Florida and Miami-Dade protections may apply depending on the employer. Florida law provides parental or family medical leave protections for certain state career service employees. Miami-Dade County leave materials also recognize Family Leave Ordinance coverage in specific County-related contexts, including leave to care for a grandparent with a serious health condition. However, the ordinance should not be read as a broad local FMLA equivalent for all private-sector employees in Miami-Dade County. Florida law generally limits local governments from requiring private employers to provide employment benefits not required by state or federal law, while preserving limited exceptions for public employees, certain government-contractor situations, and direct tax abatement or subsidy conditions.
The Americans with Disabilities Act may also provide overlapping protections when an employee’s serious health condition qualifies as a disability. In that situation, the employer may need to consider reasonable accommodations, which can include unpaid leave when it does not create an undue hardship. The Florida Civil Rights Act may provide additional disability-discrimination protections under Florida law.
What Remedies Are Available for FMLA Violations?
Under 29 U.S.C. § 2617, employees who prove an FMLA violation may recover several categories of damages. The available remedies are designed to make the employee whole for the losses caused by the employer’s unlawful conduct.
Available remedies include:
- Lost wages, benefits, or other compensation: Wages, salary, employment benefits, or other compensation the employee lost because of the violation
- Actual monetary losses: Certain direct monetary losses caused by the violation, such as care-related costs, when wages, salary, benefits, or other compensation were not lost
- Interest: Interest on recoverable monetary losses, calculated at the prevailing rate
- Liquidated damages: An additional amount equal to the recoverable monetary losses plus interest, unless the employer proves it acted in good faith and had reasonable grounds to believe its conduct did not violate the FMLA
- Reinstatement or other equitable relief: Restoration to the employee’s former position, an equivalent role, promotion, employment, or other court-ordered relief when appropriate
- Attorney’s fees and costs: Reasonable attorney’s fees, expert witness fees, and other costs
These remedies are meant to compensate employees for the financial losses caused by the FMLA violation, not to punish the employer beyond what the statute allows.
Can You Receive Punitive Damages for FMLA Violations?
The FMLA does not authorize punitive damages. FMLA remedies are limited to the damages and equitable relief allowed by the statute, including lost wages, actual monetary losses, interest, liquidated damages, reinstatement, promotion, and attorney’s fees when available. Liquidated damages may significantly increase the employee’s monetary recovery unless the employer proves good faith and reasonable grounds for its conduct.
Key Takeaway: FMLA remedies may include lost wages and benefits, actual monetary losses, interest, reinstatement or other equitable relief, liquidated damages, and attorney’s fees. Punitive damages are not available under the FMLA.
To better understand the potential value of your FMLA claim, attorney Anisley Tarragona can review your lost wages, benefits, and other losses.
How Do You File an FMLA Complaint?
Employees who believe their FMLA rights have been violated have two options for pursuing a claim: filing an administrative complaint with the U.S. Department of Labor or filing a private lawsuit in federal or state court.
DOL complaint: You may file a complaint with the DOL’s Wage and Hour Division, which investigates FMLA violations. Complaints can be submitted online, by phone, or in person at a local WHD office. The WHD can investigate the employer, seek voluntary compliance, and pursue legal action on behalf of the employee.
Private lawsuit: Under 29 U.S.C. § 2617(a)(2), employees also have a private right of action. You may file a lawsuit in federal or state court to recover available statutory remedies, including liquidated damages and attorney’s fees, through your own attorney.
Before filing either type of claim, organize the records that show when you requested leave, how your employer responded, whether your job status changed, and what financial losses resulted from the violation.
How Long Do You Have to File an FMLA Claim?
The statute of limitations for FMLA claims is set by 29 U.S.C. § 2617(c):
- 2 years from the date of the last FMLA violation for standard claims
- 3 years from the date of the last violation if the employer’s conduct was willful
A willful violation occurs when the employer knew or showed reckless disregard for whether its conduct violated the FMLA. If you miss the applicable deadline, your claim will be barred. Miami employees should consult an attorney as soon as possible after the violation to help protect their ability to file within the applicable limitations period.
How Do You Protect Your FMLA Rights in Florida?
Taking proactive steps to document your leave request and your employer’s response can help protect your FMLA rights. Employees who maintain thorough records are in a much stronger position if a dispute arises.
Follow these practical steps to protect yourself:
- Submit leave requests in writing. Use email or a written form so there is a documented record of your request, the date, and the qualifying reason.
- Keep copies of all medical certifications. Retain personal copies of every medical certification you provide to your employer, including dates submitted and any employer responses.
- Save employer communications. Preserve all emails, text messages, letters, and voicemails related to your leave, including any denial notices, approval confirmations, or comments from supervisors.
- Track your hours. Maintain your own records of hours worked to confirm you meet the 1,250-hour eligibility threshold, especially if your employer disputes your eligibility.
- Document your return to work. Record your job title, duties, pay rate, and schedule before and after leave so you can demonstrate any changes to your position upon return.
- Consult a Miami employment attorney promptly. If your employer denies your leave, retaliates against you, or fails to restore your job, speak with an attorney before the statute of limitations expires.
You do not need to use the term “FMLA” when requesting leave for the first time for an FMLA-qualifying reason. You must provide enough information for your employer to recognize that the leave may qualify under the FMLA and satisfy the applicable notice rules for foreseeable or unforeseeable leave.
Miami FMLA Violations Attorney for Denied Leave and Retaliation
If your employer denied your FMLA leave, retaliated against you for taking protected time off, or failed to restore your position after leave, you may have a federal claim for available remedies under the FMLA. These cases have strict deadlines, and key evidence is often in your employer’s possession.
Attorneys Jason D. Berkowitz and Anisley Tarragona at BT Law Group, PLLC can review your leave request, employer communications, job changes, and termination timeline to determine whether your FMLA rights may have been violated. We represent employees throughout Miami-Dade County, Broward County, and across Florida.
Call BT Law Group, PLLC at (305) 507-8506 to discuss your FMLA case. Our office is located at 3050 Biscayne Blvd STE 205, Miami, FL 33137, and serves employees throughout South Florida.
Frequently Asked Questions About FMLA Violations
What qualifies as FMLA interference by an employer?
FMLA interference occurs when an employer blocks, limits, or discourages an employee’s use of protected leave. This may include denying leave, failing to provide required notices, counting FMLA absences under an attendance policy, or pressuring an employee not to request leave. Unlike retaliation, interference does not require proof that the employer intended to punish the employee.
Can my employer fire me for requesting FMLA leave?
An employer may not terminate an employee because the employee requested or took FMLA leave. Florida’s at-will employment rule does not allow an employer to fire a worker for exercising federal leave rights. However, the FMLA does not prevent a legitimate employment decision that would have happened regardless of the leave. If the termination was tied to the request or leave, the employee may be able to pursue available remedies, including lost wages, reinstatement, liquidated damages, and attorney’s fees.
What if my employer counts my FMLA leave as an absence?
If an absence qualifies for FMLA protection, an employer may not treat it as an ordinary attendance occurrence under a no-fault or point-based policy. Discipline, warnings, or termination based on those protected absences may support an FMLA interference claim.
Do I have to tell my employer why I need FMLA leave?
For an initial FMLA-qualifying request, you do not have to use the word “FMLA.” You do need to provide enough information for the employer to recognize that the leave may involve a serious health condition, a covered family-care need, a qualifying military exigency, or another FMLA-covered reason.
How much leave am I entitled to under the FMLA?
Most qualifying FMLA reasons allow eligible employees to take up to 12 workweeks of unpaid, job-protected leave in a 12-month period. Military caregiver leave may allow up to 26 workweeks in a single 12-month period. When medically necessary, leave may be taken intermittently rather than all at once.
What happens to my health insurance while I am on FMLA leave?
During FMLA leave, your employer must maintain group health insurance coverage under the same terms that applied before the leave. You generally remain responsible for your share of the premium, but your employer cannot cancel or reduce your coverage because you are on FMLA leave.
Can I sue my employer for FMLA violations in Florida?
Employees may file a private FMLA lawsuit in federal or state court. The deadline is generally two years from the violation, or three years if the violation was willful. Attorneys Jason D. Berkowitz and Anisley Tarragona can help you evaluate whether a DOL complaint, a private lawsuit, or both may fit your situation.
How can a Miami FMLA attorney help my case?
Attorneys Jason D. Berkowitz and Anisley Tarragona can review your leave timeline, employer communications, HR records, job changes, and damages. They can identify whether the facts support an interference, retaliation, or wrongful termination claim and pursue available relief, which may include lost wages, reinstatement, or liquidated damages.
