Under FMLA, Front Pay is Equitable Remedy to be calculated by the Court, Not the Jury

Under the federal Family Medical Leave Act (29 U.S.C. §§ 2601-2654) an employee is entitled to sue for damages if an employer violates the statute. Remedies include an award of back pay, as well as an award of future damages (called “front pay”) if the evidence warrants. In a case of first impression, the Ninth Circuit has ruled that while a jury can make the calculation of back pay, an award of front pay is an equitable remedy that must be determined by the court. The case in question involved a sheriff’s deputy who contended that the Multnomah County Sheriff’s Office violated her rights when it retaliated against her for utilizing her FMLA leave, which permits an employee to 12 workweeks of unpaid leave during any 12 month period if the employee has a serious health condition, gives birth or adopts a son or daughter, or needs to care for a spouse or a son, daughter or parent, who has a serious health condition. (See 29 U.S.C. § 2612 (a)(1).) The jury found that the employer had, indeed, violated Deputy Traxler’s rights under the statute. The jury then awarded Traxler $250,000 in back pay and $1,551,000 in front pay. The court later corrected the front pay award, ruling that the front pay was an equitable remedy and that the decision on that issue was for the court to make; the court proceeded to reduce the front pay award to $267,000. The appellate court upheld the point that front pay should be determined by the court. It also affirmed the specific determination that was made in Deputy Traxler’s case. A copy of the Ninth Circuit’s opinion in Traxler v. Multnomah County is attached.

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