What Happens When You Get FMLA Wrong

Most HR managers know they need to comply with the Family and Medical Leave Act. Fewer understand exactly what happens when they do not. The consequences of FMLA non-compliance range from costly settlements to full DOL investigations — and they fall on the employer regardless of whether the violation was intentional.

Understanding what is at stake is not about scaring your HR team. It is about making sure the people responsible for leave administration understand why getting it right matters so much. Here is a clear-eyed look at what employers actually face when FMLA goes wrong.

How FMLA complaints start

Most FMLA enforcement actions begin with an employee complaint. When an employee believes their FMLA rights have been violated they can file a complaint with the Department of Labor’s Wage and Hour Division or file a private lawsuit directly in federal court. They do not have to choose one or the other — they can file both.

The DOL investigates complaints at no cost to the employee. Investigators have broad authority to examine payroll records, personnel files, leave records, and communications. They can interview managers, HR staff, and other employees. The investigation process is not a quick one, and it consumes significant HR and legal resources even when the employer is ultimately found to be in compliance.

The most common FMLA violations

Certain violations appear repeatedly in DOL investigations and court cases. Knowing them helps HR teams focus their compliance efforts where the risk is highest.

Interference is the most frequently cited violation. Employers interfere with FMLA rights when they discourage employees from taking leave, count FMLA absences against them in attendance policies, or fail to designate qualifying leave as FMLA-protected. Many interference violations happen unintentionally — a manager who tells an employee their absence is causing problems for the team may be interfering with FMLA rights without realizing it.

Retaliation is the second major category. When an employer takes an adverse action against an employee because they exercised FMLA rights, that constitutes retaliation. Terminations, demotions, schedule changes, and negative performance reviews that follow FMLA leave are all potential retaliation claims. The timing alone — an adverse action shortly after FMLA leave — can be enough for a court to find that retaliation occurred.

Failure to designate is increasingly scrutinized by the DOL. When an employer has enough information to know leave may qualify for FMLA protection, they must designate it as such — even if the employee never asks for FMLA leave by name. Waiting for the employee to invoke FMLA specifically before designating is a common mistake that creates significant liability.

What employers actually pay

FMLA litigation is expensive. Employers who lose FMLA cases face several categories of damages.

Lost wages and benefits represent the foundation of most FMLA damage awards. Employees recover the wages and benefits they lost as a result of the violation. In a wrongful termination case this can mean months or years of back pay plus the value of lost health insurance, retirement contributions, and other benefits.

Liquidated damages double the award automatically unless the employer can show it acted in good faith and had reasonable grounds for believing its conduct did not violate the FMLA. Good faith is harder to prove than most employers expect. A court will look at whether the employer had written FMLA policies, whether managers received training, and whether the employer sought legal advice before acting.

Attorney fees go to the employee when they prevail. This means the employer pays not only their own legal fees but also the employee’s. In complex FMLA cases that proceed to trial, combined legal fees easily reach six figures.

Reinstatement is the remedy courts most often order. Employees who were terminated in violation of FMLA have the right to be reinstated to their former position or an equivalent one. Reinstatement orders create their own complications, particularly when the employee’s position has been filled or eliminated.

The real cost of a DOL investigation

Even when a DOL investigation does not result in a formal finding of violation, the process itself carries substantial costs. HR staff spend hours pulling records and responding to investigator requests. Employment counsel must be engaged to manage the process. Management time is diverted from operations.

When violations are found, the DOL can require employers to pay back wages, change their policies, and undergo compliance training. In egregious cases the DOL can refer matters to the Department of Justice for litigation. The DOL also publishes press releases about significant FMLA enforcement actions — reputational damage that is difficult to quantify but very real.

What good-faith compliance looks like

Courts and the DOL consistently give credit to employers who demonstrate genuine compliance efforts. Written FMLA policies clearly communicated to employees matter. Manager training on FMLA obligations matters. Consistent documentation of every step of the leave process matters.

An employer who can show that every manager completed FMLA training, that leave requests were processed consistently, and that designation notices went out on time is in a fundamentally different position than one who handled everything informally and kept no records.

This is precisely why documentation is not optional — it is your primary defense against any FMLA claim. Every notice, every certification, every designation, and every communication related to a leave request should be saved and timestamped.

Building a compliance record that protects you

The most effective way to demonstrate good-faith FMLA compliance is to build systematic processes that create their own paper trail. When your leave tracking tool automatically timestamps every deadline, flags every missing certification, and generates audit-ready reports, you have documentation that shows compliance was not an afterthought.

FMLAPro Tracker Pro builds that paper trail automatically. Running inside Microsoft Excel, it tracks every aspect of FMLA administration from the initial request through return to work — and every action is logged so you always have a complete record.

Visit our store to see how it works or contact us if you have questions about your specific situation.