Q: Is an Employer Liable for Overtime Pay and similar damages for an FMLA Violation?
A: The FMLA provides for a broad range of damages in the event an employer is liable for an FMLA violation. The statute states that an employee may be awarded “any wages, salary, employment benefits, or other compensation denied or lost to the employee by reason of the [FMLA] violation.” As my colleague Staci Ketay Rotman points out in her wage and hour blog article, damages also likely include the amount of overtime the employee would have earned during the period covered by the FMLA violation.
In an FMLA case highlighted by Staci, a federal court estimated that a plaintiff who prevailed on his FMLA retaliation claim would have worked 6.5 hours of overtime per week over the 125-week period between his termination and the judgment. The court arrived at this figure using an average of the plaintiff’s weekly hours during the four months preceding his termination. Notably, the court apparently found that the year-to-date average was more reliable than a 12-month average for determining how much overtime the plaintiff would have worked had he not been terminated.