C.F.R. » Title 29 » CHAPTER V—WAGE AND HOUR DIVISION, DEPARTMENT OF LABOR › SUBCHAPTER C—OTHER LAWS › PART 825—THE FAMILY AND MEDICAL LEAVE ACT OF 1993 › Subpart B—Employee Leave Entitlements Under the Family and Medical Leave Act

29 C.F.R. § 825.220

Protection for employees who request leave or otherwise assert FMLA rights

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(a) The FMLA prohibits interference with an employee's rights under the law, and with legal proceedings or inquiries relating to an employee's rights. More specifically, the law contains the following employee protections:

(1) An employer is prohibited from interfering with, restraining, or denying the exercise of (or attempts to exercise) any rights provided by the Act.

(2) An employer is prohibited from discharging or in any other way discriminating against any person (whether or not an employee) for opposing or complaining about any unlawful practice under the Act.

(3) All persons (whether or not employers) are prohibited from discharging or in any other way discriminating against any person (whether or not an employee) because that person has—

(i) Filed any charge, or has instituted (or caused to be instituted) any proceeding under or related to this Act;

(ii) Given, or is about to give, any information in connection with an inquiry or proceeding relating to a right under this Act;

(iii) Testified, or is about to testify, in any inquiry or proceeding relating to a right under this Act.

(b) Any violations of the Act or of these regulations constitute interfering with, restraining, or denying the exercise of rights provided by the Act. An employer may be liable for compensation and benefits lost by reason of the violation, for other actual monetary losses sustained as a direct result of the violation, and for appropriate equitable or other relief, including employment, reinstatement, promotion, or any other relief tailored to the harm suffered. See § 825.400(c). Interfering with the exercise of an employee's rights would include, for example, not only refusing to authorize FMLA leave, but discouraging an employee from using such leave. It would also include manipulation by a covered employer to avoid responsibilities under FMLA, for example:

(1) Transferring employees from one worksite to another for the purpose of reducing worksites, or to keep worksites, below the 50-employee threshold for employee eligibility under the Act;

(2) Changing the essential functions of the job in order to preclude the taking of leave;

(3) Reducing hours available to work in order to avoid employee eligibility.

(c) The Act's prohibition against interference prohibits an employer from discriminating or retaliating against an employee or prospective employee for having exercised or attempted to exercise FMLA rights. For example, if an employee on leave without pay would otherwise be entitled to full benefits (other than health benefits), the same benefits would be required to be provided to an employee on unpaid FMLA leave. By the same token, employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions; nor can FMLA leave be counted under no fault attendance policies. See § 825.215.

(d) Employees cannot waive, nor may employers induce employees to waive, their prospective rights under FMLA. For example, employees (or their collective bargaining representatives) cannot trade off the right to take FMLA leave against some other benefit offered by the employer. This does not prevent the settlement or release of FMLA claims by employees based on past employer conduct without the approval of the Department of Labor or a court. Nor does it prevent an employee's voluntary and uncoerced acceptance (not as a condition of employment) of a light duty assignment while recovering from a serious health condition. See § 825.702(d). An employee's acceptance of such light duty assignment does not constitute a waiver of the employee's prospective rights, including the right to be restored to the same position the employee held at the time the employee's FMLA leave commenced or to an equivalent position. The employee's right to restoration, however, ceases at the end of the applicable 12-month FMLA leave year.

(e) Individuals, and not merely employees, are protected from retaliation for opposing (e.g., filing a complaint about) any practice which is unlawful under the Act. They are similarly protected if they oppose any practice which they reasonably believe to be a violation of the Act or regulations.

Notes of Decisions
Cited in 894 cases (223 in the last 5 years), 1996–2026 · leading case: Richard Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135 (3rd Cir. 2004).
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Richard Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135 (3rd Cir. 2004). · cites it 9× “29 C.F.R. § 825.220 (c). The DOL’s regulations also provide that “[a]ny violations of the [FMLA] or of these regulations constitute interfering with, restraining, or denying the exercise of rights provided by the Act.”
Xin Liu v. Amway Corp. Does 1-50 Inclusive, 347 F.3d 1125 (9th Cir. 2003). · cites it 10× “29 C.F.R. § 825.220 (b). The DOL interprets “interference” to include “not only refusing to authorize FMLA leave, but discouraging an employee from using such leave.”
Penny Bachelder Mark Bachelder v. Am. West Airlines, Inc., 259 F.3d 1112 (9th Cir. 2001). · cites it 8× “29 C.F.R. § 825.220 (c) (emphasis added).”
Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294 (3rd Cir. 2012). · cites it 7× “See 29 CFR § 825.220 (c). Under this regulatory interpretation, employers are barred from considering an employee‘s FMLA leave ―as a negative factor in employment actions such as hiring, promotions or disciplinary actions.”
Joseph Egan v. Delaware River Port Auth., 851 F.3d 263 (3rd Cir. 2017). · cites it 8× “29 C.F.R. § 825.220 (c). A plaintiff who proceeds to trial under a pretext theory must prove that a protected characteristic or the exercise of a protected right was a determinative factor and therefore had a determinative effect on the decision such that in the absence of the…”
Taylor v. Progress Energy, Inc., 493 F.3d 454 (4th Cir. 2007). · cites it 14× “OPINION MICHAEL, Circuit Judge: The central issue in this appeal, now before us on rehearing, is the meaning of 29 C.F.R. § 825.220 (d) (section 220(d)), a regulation implementing the Family and Medical Leave Act of 1993 (FMLA or Act), 29 U.”
Hodgens v. Gen. Dynamics Corp., 144 F.3d 151 (1st Cir. 1998). · cites it 7× “*160 § 2615(a)(1) & (2); 29 C.F.R. § 825.220 (1997). In particular, “[a]n employer is prohibited from discriminating against employees .”
Budhun v. Reading Hosp. & Med. Ctr., 765 F.3d 245 (3rd Cir. 2014). · cites it 6× “§ 2615(a)(1); 29 C.F.R. § 825.220 (c). 1 There is no dispute that Reading is an employer that was required to make FMLA leave available, that Bu-dhun was eligible for FMLA leave, or that her hand injury qualified as a serious medical condition.”
Woods v. Start Treatment & Recovery Centers, Inc., 864 F.3d 158 (2d Cir. 2017). · cites it 4× “2012) (citing 29 C.F.R. 825.220(c)), and yet others look to a combination of all three, see Richardson v.”
Pulczinski v. Trinity Structural Towers, Inc., 691 F.3d 996 (8th Cir. 2012). · cites it 6× “2006); 29 C.F.R. § 825.220 (b). An employee proceeding on this theory need not show that an employer acted with discriminatory intent.”
Barbara Taylor v. Progress Energy, Inc., 415 F.3d 364 (4th Cir. 2005). · cites it 12× “, including the violation of (1) her substantive right to twelve weeks of unpaid leave to deal with a serious health condition and (2) her proscriptive right not to be discriminated or retaliated against for exercising her substantive FMLA rights. Progress argued in its motion…”
Portia Surtain v. Hamlin Terrace Found., 789 F.3d 1239 (11th Cir. 2015). · cites it 4× “7 See 29 C.F.R. § 825.220 (c). To state a claim of interference, the employee must allege that he was entitled to a benefit under the FMLA and was denied that benefit.”
Show all 894 citing cases →
— 29 C.F.R. § 825.220(a) — 1 case
Royston v. Brennan (N.D. Ill. 2021).
— 29 C.F.R. § 825.220(b) — 4 cases
Penny Bachelder Mark Bachelder v. Am. West Airlines, Inc., 259 F.3d 1112 (9th Cir. 2001). “29 C.F.R. § 825.220 (c) (emphasis added).”
Ruder v. Pequea Valley Sch. Dist., 790 F. Supp. 2d 377 (E.D. Pa. 2011).
Brenda Joyce Lowery v. Ronald Strength, 356 F. App'x 332 (11th Cir. 2009).
Bordeau v. Saginaw Control & Eng'g, Inc., 446 F. Supp. 2d 766 (E.D. Mich. 2006).
— 29 C.F.R. § 825.220(c) — 16 cases
Woods v. Start Treatment & Recovery Centers, Inc., 864 F.3d 158 (2d Cir. 2017). “2012) (citing 29 C.F.R. 825.220(c)), and yet others look to a combination of all three, see Richardson v.”
Penny Bachelder Mark Bachelder v. Am. West Airlines, Inc., 259 F.3d 1112 (9th Cir. 2001). “29 C.F.R. § 825.220 (c) (emphasis added).”
Schmauch v. Honda of Am. Mfg., Inc., 295 F. Supp. 2d 823 (S.D. Ohio 2003).
Mascioli v. Arby's Restaurant Grp., Inc., 610 F. Supp. 2d 419 (W.D. Pa. 2009).
Campbell v. Jefferson Univ. Physicians, 22 F. Supp. 3d 478 (E.D. Pa. 2014).
— 29 C.F.R. § 825.220(d) — 4 cases
Taylor v. Progress Energy, Inc., 493 F.3d 454 (4th Cir. 2007). “OPINION MICHAEL, Circuit Judge: The central issue in this appeal, now before us on rehearing, is the meaning of 29 C.F.R. § 825.220 (d) (section 220(d)), a regulation implementing the Family and Medical Leave Act of 1993 (FMLA or Act), 29 U.”
Escriba v. Foster Poultry Farms, 793 F. Supp. 2d 1147 (E.D. Cal. 2011).
Saramiento v. Fresh Harvest, Inc. (N.D. Cal. 2021).
Taylor v. Progress Energy, Inc (4th Cir. 2007).
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