I have spoken to a number of attorneys in the past few years, and most of them have expressed a hesitancy in accepting personal FMLA issues if there are no significant violations of the law, or where the possibility of recouping significant damages is non-existent. The FMLA does not allow compensatory or punitive damages. The FMLA only allows damages where tangible losses are incurred, ie., loss of wages, employment benefits, or other compensation denied. It also allows for damages where actual monetary losses are incurred as a direct result of the violation, such as, the cost of providing care for a dependent up to twelve (12) weeks.
Since the FMLA became law, there have been a number of personnel who have gone to court for violations of the FMLA. Some have won, and some have lost. Some District Courts have ruled one way on an issue, and other District Courts have ruled another way on the same issue. There is no consensus among the various District and Appeals Courts that any issues that they rule on would set a precedence, or guidance, for other District Courts to follow. That has been the general rule with some exceptions.
There is also a possibility of filing a class-action suit under the FMLA statutes. These statutes can be found at the
Legal Information Institute, Cornell University Part 2617. Enforcement. Para 2617(a)(2) which reads, in part, Right of Action. An action to recover damages or equitable
relief prescribed in paragraph (1) may be maintained against any employer (including a public agency) in a Federal or State court of competent jurisdiction by any one or more
employees for and in behalf of --
(B) the employees and other employees similarly situated.
(A) the employees; or
What this could mean is that a class-action lawsuit similar to an EEO class-action complaint/suit, can be filed against the Agency. However, the drawback would be the lack of compensatory or punitive damages. The government cannot be assessed punitive damages under the law. It can be assessed compensatory damages, but not under the FMLA. The probability of collecting any significant amount of funds in any settlement, or order, would be minimal. However, in filing a potential class-action under the provisions above, I believe affected personnel would be searching for a settlement under other terms, ie., equitable relief, and that relief would be to seek a precedence setting settlement, order, or judgement in favor of the aggrieved individuals (the employees). Whether any court of law would rule in that manner, or consider payment of all legal fees, would be questionable because a case of that size would require a significant amount of legal work.
Unfortunately, it is that lack of compensatory damages that would preclude an attorney, or a group of attorneys from initiating a case of such magnitude. There are other reasons, as presented elsewhere on this web site, that would also preclude such an action, or at the very least, make it very difficult to initiate such an action. Since July of 2003, the class attorneys of the Cyncar v. Potter EEO class action have been studying the feasibility of initiating a class-action. After months of research, reviewing documents of potential participants, and contacting potential participants, they had decided that a class action civil suit under the FMLA statutes is not a feasible option.
If such a class action could be initiated under the FMLA statutes, a person who is part of an EEO class action alleging the same type of violations as the an FMLA civil suit cannot be part of a separate FMLA Class Action that would be litigated in Federal District Court. This would be viewed as a collateral attack utilizing other avenues and it could negate your participation in the EEO class action utilizing EEOC channels, or Federal District Court, as appropriate.