Employment-Ninth Circuit Rules That Plaintiff May Receive Front Pay, And Possibly Liquidated Damages, For Termination In Violation Of The FMLA

What remedies and damages are available to an employee whose employment is terminated in violation of the Family and Medical Leave Act (the “FMLA”)? This question was addressed by the Court in Traxler v. Multnomah County, No. 08-35641 (9th Cir. 2010).

Specifically, the case presented two issues concerning damages under the FMLA. The first issue is whether the court, rather than the jury, should determine the amount of the front pay awarded for a termination of employment in violation of the FMLA. Front pay is the amount awarded for lost compensation during the period between the Court’s judgment and reinstatement at work (or in lieu of reinstatement). The Court noted that the FMLA does not explicitly grant plaintiffs the right to front pay, so that any award of front pay would be provided only under the section of the FMLA which grants prospective equitable relief (29 U.S.C. §2617(a)(1)(B), providing “for such equitable relief as may be appropriate, including employment, reinstatement and promotion”). The Court concluded that front pay is an equitable remedy to be determined by the court, both as to the availability of the remedy and the amount of the award.

The second issue is whether liquidated damages are available. The Court noted that 29 U.S.C. section 2617(a)(1)(A)(iii) subjects an employer, who violates the FMLA, to double damages, unless the employer can prove that the action in question was taken in good faith, and that the employer had reasonable grounds for believing that this action did not violate the FMLA. Here, the district court had denied the plaintiff’s request for liquidated damages, without any explanation. The Court decided to remand the case back to the district court to reconsider the issue of whether liquidated damages are available and set forth the reasons for its decision.