Carefully consider FMLA request to prevent double damages

The FMLA has a built-in penalty for intentionally interfering with the law. Courts can double the damages when they believe an employer acted to circumvent the FMLA.

Acting in good faith is the key. Even if a court finds in favor of an employee’s FMLA complaint, you may be able to avoid paying double if you can show you carefully considered whether the employee was eligible for FMLA leave.

Recent case: Cynthia Dillon requested FMLA leave to care for her grandmother, who became ill while Dillon was visiting her in Jamaica. Dillon had e-mailed her employer from the island, explaining that her grandmother had been like a mother to her. She said her grandmother needed her help as she recovered from her illness. Apparently, her employer suspected Dillon was looking to extend her vacation, and proceeded with caution.

The FMLA provides time off to an employee to care for a parent. But “a parent” does not have to be the biological parent—he or she can be either “the biological parent of an employee or an individual who stood in loco parentis to an employee.” And the FMLA regulations clarify that in loco parentis means someone “with day-to-day responsibilities to care for and financially support a child.” If the child is now an adult, the one who cared for the child when she was young qualifies as the “parent.”

Dillon’s employer, the Maryland National Capital Park and Planning Commission, considered her request, but ultimately decided she wasn’t eligible since the ill person was not her parent.


Dillon sued, and a jury agreed with her. It concluded that under the circumstances, the grandmother was more like a parent than a grandparent, and as the FMLA regulations allow, caring for her was covered. The judge, however, refused to double the damages because the employer’s eligibility determination was done in good faith.

Dillon appealed, asking the 4th Circuit Court of Appeals to double her damages. It refused, concluding the employer acted in good faith, even if it was incorrect, when it denied leave to care for the grandmother. (Dillon v. Maryland National Capital Park and Planning Commission, No. 06-2221, 4th Cir., 2007)

Final note: Like the FMLA, the Fair Labor Standards Act also allows double damages in cases of intentional interference.

Good-Faith FMLA analysis

There are several ways an employer can show good faith in its effort to determine whether an employee is eligible for FMLA leave. Even if you lose an FMLA complaint case, you’ll stand a better chance of avoiding double damages if you:

  • Read up on FMLA guidance. The U.S. Labor Department has extensive information on its web site to help employers make the right call. Go to
  • Read publications, such as North Carolina Employment Law, to familiarize yourself with the FMLA and cases decided by the courts.
  • Call in an expert for help in setting up your FMLA policies.
  • Consult with an attorney when you aren’t sure how to handle a specific request.

Bottom line: If you can document what you did to make sure the company follows the law, chances are you won’t be zapped with double damages.