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.
|