How to Decide Whether to Sue Under FMLA or CFRA Or Both

If you are bringing a lawsuit against your employer for violating your medical leave rights, there are a number of possible important reasons why you should consider including only FMLA, only CFRA or both claims in your lawsuit, even if they appear to be in many ways similar:

  • Avoiding removal of your case to federal court. If you include the federal FMLA claim, in some cases you employer will have the right to remove your case from State to Federal Court. While this is not the end of the world, there are a number of important advantages to pursuing your case in State court, and if there is a way to prevent removal, you should consider suing the employer only under CFRA. If removal is not an issue, however, then including both FMLA and CFRA claim might be advantageous to maximizing your right to recover damages, as mentioned below.
  • Individual liability under FMLA. Interestingly, under FMLA (but not CFRA), individual managers may be held liable for violating your FMLA rights if you can show that a specific individual exercised control over your employment and the decision to terminate.  Nardodetsky v Cardone Industries, Inc. (E.D. Pa. Feb. 24, 2010). However, no individual liability exists under CFRA and only the organization can be held liable.  While you might not necessarily want to go after the personal pockets of the manager who terminated you, including individual defendants in the lawsuit can be strategically advantageous by applying additional pressure on the employer to spend more money on defending the case, providing access to broader discovery in the case, and therefore – “encouraging” the employer-defendant to consider settling the case sooner than later.
  • Emotional distress damages an punitive damages under CFRA. FMLA does not allow for recovery of these types of damages (Farrell v Tri-County Metro. Transp. Dist. (2008)), but CFRA does, along with all the other remedies available under FMLA (Taylor v Trees, Inc. (2014)). For this reason, in many situations including both CFRA and FMLA claims is the way to go in order to maximize recovery.

The above considerations are some of the more important factors that you should consider when deciding which claims to include in your potential FMLA / CFRA violation case.