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What does “willful” mean under the FMLA?


The Family Medical Leave Act (“FMLA”) provides certain employees with up to twelve (12) weeks of unpaid, job-protected leave each year. The FMLA is designed to help employees balance their work and personal responsibilities by protecting their jobs while allowing them to tend to their family and medical needs. The Act makes it unlawful for an employer to interfere with and/or retaliate against, an employee’s right to take FMLA leave.

Typically, an employee has two (2) years from the date of an FMLA violation to file a federal lawsuit against his or her employer. However, if the employer “willfully” violated the FMLA in interfering with and/or retaliating against an employee’s protected rights under the FMLA, then that employee has three (3) years to bring a lawsuit against his or her employer. The FMLA itself does not define “willful” in terms of what constitutes a “willful” violation of the Act. Instead, the courts have been left to define “willful” and to determine what actions constitute such unlawful behavior.

What does “willful” mean?

As mentioned above, Congress did not define “willful” in the context of the FMLA and neither has the United States Supreme Court (“Supreme Court”). However, the United States Supreme Court has defined “wilfill” in the context of the Fair Labor Standards Act (“FLSA”). Some courts have adopted that same “willful” definition used under the FLSA. Notably, the Supreme Court defined “willful” in the context of the FLSA as “voluntary,” “deliberate,” and “intentional.” In FLSA cases, the employee must demonstrate “that the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute.” Many Circuit courts have applied this definition in the context of the FMLA. Notably, the Tenth, Sixth, Second, Eighth, First, and Eleventh Circuits have adopted this definition.

What constitutes “willful” behavior?

When determining whether an employer has “willfully” violated the FMLA, the Courts look to the employer’s conduct. Specifically, the courts determine whether the employer’s conduct was more than “mere negligence.” The employee bears the burden of establishing that the employer acted willfully in violating the FMLA. For example, when an employee can demonstrate that the employee notified the employer of his or her FMLA rights and the employer continued to violate the Act, the employer may have acted “willfully.” The employer cannot rely on the defense that it did not know of the proper procedures or policies for FMLA administration.

If you feel your rights under the Family Medical Leave Act have been violated, or if you have any other questions regarding your employment rights, please contact the experienced Birmingham
employment law attorneys at Michel | King. You can contact us either online or by calling us at (205) 319-9724. We are here to serve you.
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