Does a DOL complaint preclude an FMLA lawsuit?


Issue:

One of your employees has filed a complaint with the U.S. Department of Labor claiming that your organization has interfered with her right to leave under the Family and Medical Leave Act (FMLA). Does this mean that the employee must use administrative, rather than judicial, procedures to pursue her claim?

Answer:    

No. Although 29 CFR Sec. 825.400(a) indicates that an employee has a choice of filing a complaint with the Secretary of Labor or filing a private lawsuit, the filing of a complaint with the Labor Department does not preclude a civil action. The FMLA places only two limitations on an employee’s right to file a cause of action, both of which deal with lawsuits brought under various sections of the statute by the Labor Secretary. Where a statute provides a right to a cause of action and lists the limitations, the regulations cannot terminate a statutory right.

Note, too, that the filing of a complaint with the Labor Department is not a prerequisite to a civil action. Thus, an employee can file a lawsuit whether or not the employee has filed a complaint with the Labor Department.

Source: Spakes v Broward County Sheriff’s Office (11thCir 2011) 160 LC ¶35,869, 2011 US App. LEXIS 1925.

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