29 U.S.C. § 2617 — Enforcement

Page 786 TITLE 29—LABOR § 2615 tification states that the employee is needed to care for the son, daughter, spouse, or parent who has a serious health condition on the date that the leave of the employee expired. (Pub. L. 103–3, title I, § 104, Feb. 5, 1993, 107 Stat. 12; Pub. L. 110–181, div. A, title V, § 585(a)(3)(F), Jan. 28, 2008, 122 Stat. 131.) Editorial Notes AMENDMENTS 2008—Subsec. (c)(2)(B)(i). Pub. L. 110–181, § 585(a)(3)(F)(i), inserted ‘‘or under section 2612(a)(3) of this title’’ before semicolon. Subsec. (c)(3)(A)(iii). Pub. L. 110–181, § 585(a)(3)(F)(ii), added cl. (iii). Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective 6 months after Feb. 5, 1993, except that, in the case of collective bargaining agreements in effect on that effective date, section applicable on the earlier of (1) the date of termination of such agree- ment, or (2) the date that occurs 12 months after Feb. 5, 1993, see section 405(b) of Pub. L. 103–3, set out as a note under section 2601 of this title. § 2615. Prohibited acts (a) Interference with rights (1) Exercise of rights It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right pro- vided under this subchapter. (2) Discrimination It shall be unlawful for any employer to dis- charge or in any other manner discriminate against any individual for opposing any prac- tice made unlawful by this subchapter. (b) Interference with proceedings or inquiries It shall be unlawful for any person to dis- charge or in any other manner discriminate against any individual because such individual— (1) has filed any charge, or has instituted or caused to be instituted any proceeding, under or related to this subchapter; (2) has given, or is about to give, any infor- mation in connection with any inquiry or pro- ceeding relating to any right provided under this subchapter; or (3) has testified, or is about to testify, in any inquiry or proceeding relating to any right provided under this subchapter. (Pub. L. 103–3, title I, § 105, Feb. 5, 1993, 107 Stat. 14.) Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective 6 months after Feb. 5, 1993, except that, in the case of collective bargaining agreements in effect on that effective date, section applicable on the earlier of (1) the date of termination of such agree- ment, or (2) the date that occurs 12 months after Feb. 5, 1993, see section 405(b) of Pub. L. 103–3, set out as a note under section 2601 of this title. § 2616. Investigative authority (a) In general To ensure compliance with the provisions of this subchapter, or any regulation or order issued under this subchapter, the Secretary shall have, subject to subsection (c), the inves- tigative authority provided under section 211(a) of this title. (b) Obligation to keep and preserve records Any employer shall make, keep, and preserve records pertaining to compliance with this sub- chapter in accordance with section 211(c) of this title and in accordance with regulations issued by the Secretary. (c) Required submissions generally limited to an- nual basis The Secretary shall not under the authority of this section require any employer or any plan, fund, or program to submit to the Secretary any books or records more than once during any 12- month period, unless the Secretary has reason- able cause to believe there may exist a violation of this subchapter or any regulation or order issued pursuant to this subchapter, or is inves- tigating a charge pursuant to section 2617(b) of this title. (d) Subpoena powers For the purposes of any investigation provided for in this section, the Secretary shall have the subpoena authority provided for under section 209 of this title. (Pub. L. 103–3, title I, § 106, Feb. 5, 1993, 107 Stat. 15.) Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective 6 months after Feb. 5, 1993, except that, in the case of collective bargaining agreements in effect on that effective date, section applicable on the earlier of (1) the date of termination of such agree- ment, or (2) the date that occurs 12 months after Feb. 5, 1993, see section 405(b) of Pub. L. 103–3, set out as a note under section 2601 of this title. § 2617. Enforcement (a) Civil action by employees (1) Liability Any employer who violates section 2615 of this title shall be liable to any eligible em- ployee affected— (A) for damages equal to— (i) the amount of— (I) any wages, salary, employment ben- efits, or other compensation denied or lost to such employee by reason of the violation; or (II) in a case in which wages, salary, employment benefits, or other com- pensation have not been denied or lost to the employee, any actual monetary losses sustained by the employee as a di- rect result of the violation, such as the cost of providing care, up to a sum equal to 12 weeks (or 26 weeks, in a case in- volving leave under section 2612(a)(3) of this title) of wages or salary for the em- ployee; (ii) the interest on the amount described in clause (i) calculated at the prevailing rate; and (iii) an additional amount as liquidated damages equal to the sum of the amount Page 787 TITLE 29—LABOR § 2617 described in clause (i) and the interest de- scribed in clause (ii), except that if an em- ployer who has violated section 2615 of this title proves to the satisfaction of the court that the act or omission which violated section 2615 of this title was in good faith and that the employer had reasonable grounds for believing that the act or omis- sion was not a violation of section 2615 of this title, such court may, in the discre- tion of the court, reduce the amount of the liability to the amount and interest deter- mined under clauses (i) and (ii), respec- tively; and (B) for such equitable relief as may be ap- propriate, including employment, reinstate- ment, and promotion. (2) Right of action An action to recover the damages or equi- table relief prescribed in paragraph (1) may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of— (A) the employees; or (B) the employees and other employees similarly situated. (3) Fees and costs The court in such an action shall, in addi- tion to any judgment awarded to the plaintiff, allow a reasonable attorney’s fee, reasonable expert witness fees, and other costs of the ac- tion to be paid by the defendant. (4) Limitations The right provided by paragraph (2) to bring an action by or on behalf of any employee shall terminate— (A) on the filing of a complaint by the Sec- retary in an action under subsection (d) in which restraint is sought of any further delay in the payment of the amount de- scribed in paragraph (1)(A) to such employee by an employer responsible under paragraph (1) for the payment; or (B) on the filing of a complaint by the Sec- retary in an action under subsection (b) in which a recovery is sought of the damages described in paragraph (1)(A) owing to an eli- gible employee by an employer liable under paragraph (1), unless the action described in subparagraph (A) or (B) is dismissed without prejudice on motion of the Secretary. (b) Action by Secretary (1) Administrative action The Secretary shall receive, investigate, and attempt to resolve complaints of violations of section 2615 of this title in the same manner that the Secretary receives, investigates, and attempts to resolve complaints of violations of sections 206 and 207 of this title. (2) Civil action The Secretary may bring an action in any court of competent jurisdiction to recover the damages described in subsection (a)(1)(A). (3) Sums recovered Any sums recovered by the Secretary pursu- ant to paragraph (2) shall be held in a special deposit account and shall be paid, on order of the Secretary, directly to each employee af- fected. Any such sums not paid to an employee because of inability to do so within a period of 3 years shall be deposited into the Treasury of the United States as miscellaneous receipts. (c) Limitation (1) In general Except as provided in paragraph (2), an ac- tion may be brought under this section not later than 2 years after the date of the last event constituting the alleged violation for which the action is brought. (2) Willful violation In the case of such action brought for a will- ful violation of section 2615 of this title, such action may be brought within 3 years of the date of the last event constituting the alleged violation for which such action is brought. (3) Commencement In determining when an action is com- menced by the Secretary under this section for the purposes of this subsection, it shall be considered to be commenced on the date when the complaint is filed. (d) Action for injunction by Secretary The district courts of the United States shall have jurisdiction, for cause shown, in an action brought by the Secretary— (1) to restrain violations of section 2615 of this title, including the restraint of any with- holding of payment of wages, salary, employ- ment benefits, or other compensation, plus in- terest, found by the court to be due to eligible employees; or (2) to award such other equitable relief as may be appropriate, including employment, reinstatement, and promotion. (e) Solicitor of Labor The Solicitor of Labor may appear for and rep- resent the Secretary on any litigation brought under this section. (f) Government Accountability Office and Li- brary of Congress In the case of the Government Accountability Office and the Library of Congress, the author- ity of the Secretary of Labor under this sub- chapter shall be exercised respectively by the Comptroller General of the United States and the Librarian of Congress. (Pub. L. 103–3, title I, § 107, Feb. 5, 1993, 107 Stat. 15; Pub. L. 104–1, title II, § 202(c)(1)(B), Jan. 23, 1995, 109 Stat. 9; Pub. L. 108–271, § 8(b), July 7, 2004, 118 Stat. 814; Pub. L. 110–181, div. A, title V, § 585(a)(3)(G), Jan. 28, 2008, 122 Stat. 131.) Editorial Notes AMENDMENTS 2008—Subsec. (a)(1)(A)(i)(II). Pub. L. 110–181 inserted ‘‘(or 26 weeks, in a case involving leave under section 2612(a)(3) of this title)’’ after ‘‘12 weeks’’. 2004—Subsec. (f). Pub. L. 108–271 substituted ‘‘Govern- ment Accountability Office’’ for ‘‘General Accounting Office’’ in heading and text. 1995—Subsec. (f). Pub. L. 104–1 added subsec. (f). Page 788 TITLE 29—LABOR § 2618 Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1995 AMENDMENT Amendment by Pub. L. 104–1 effective one year after transmission to Congress of the study under section 1371 of Title 2, The Congress, see section 1312(f)(2) of Title 2. The study required under section 1371 of Title 2, dated Dec. 31, 1996, was transmitted to Congress by the Board of Directors of the Office of Compliance on Dec. 30, 1996. EFFECTIVE DATE Section effective 6 months after Feb. 5, 1993, except that, in the case of collective bargaining agreements in effect on that effective date, section applicable on the earlier of (1) the date of termination of such agree- ment, or (2) the date that occurs 12 months after Feb. 5, 1993, see section 405(b) of Pub. L. 103–3, set out as a note under section 2601 of this title. § 2618. Special rules concerning employees of local educational agencies (a) Application (1) In general Except as otherwise provided in this section, the rights (including the rights under section 2614 of this title, which shall extend through- out the period of leave of any employee under this section), remedies, and procedures under this subchapter shall apply to— (A) any ‘‘local educational agency’’ (as de- fined in section 7801 of title 20) and an eligi- ble employee of the agency; and (B) any private elementary or secondary school and an eligible employee of the school. (2) Definitions For purposes of the application described in paragraph (1): (A) Eligible employee The term ‘‘eligible employee’’ means an el- igible employee of an agency or school de- scribed in paragraph (1). (B) Employer The term ‘‘employer’’ means an agency or school described in paragraph (1). (b) Leave does not violate certain other Federal laws A local educational agency and a private ele- mentary or secondary school shall not be in vio- lation of the Individuals with Disabilities Edu- cation Act (20 U.S.C. 1400 et seq.), section 794 of this title, or title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.), solely as a result of an eligible employee of such agency or school exercising the rights of such employee under this subchapter. (c) Intermittent leave or leave on reduced sched- ule for instructional employees (1) In general Subject to paragraph (2), in any case in which an eligible employee employed prin- cipally in an instructional capacity by any such educational agency or school requests leave under subparagraph (C) or (D) of section 2612(a)(1) of this title or under section 2612(a)(3) of this title that is foreseeable based on planned medical treatment and the em- ployee would be on leave for greater than 20 percent of the total number of working days in the period during which the leave would ex- tend, the agency or school may require that such employee elect either— (A) to take leave for periods of a particular duration, not to exceed the duration of the planned medical treatment; or (B) to transfer temporarily to an available alternative position offered by the employer for which the employee is qualified, and that— (i) has equivalent pay and benefits; and (ii) better accommodates recurring peri- ods of leave than the regular employment position of the employee. (2) Application The elections described in subparagraphs (A) and (B) of paragraph (1) shall apply only with respect to an eligible employee who complies with section 2612(e)(2) of this title. (d) Rules applicable to periods near conclusion of academic term The following rules shall apply with respect to periods of leave near the conclusion of an aca- demic term in the case of any eligible employee employed principally in an instructional capac- ity by any such educational agency or school: (1) Leave more than 5 weeks prior to end of term If the eligible employee begins leave under section 2612 of this title more than 5 weeks prior to the end of the academic term, the agency or school may require the employee to continue taking leave until the end of such term, if— (A) the leave is of at least 3 weeks dura- tion; and (B) the return to employment would occur during the 3-week period before the end of such term. (2) Leave less than 5 weeks prior to end of term If the eligible employee begins leave under subparagraph (A), (B), or (C) of section 2612(a)(1) of this title or under section 2612(a)(3) of this title during the period that commences 5 weeks prior to the end of the academic term, the agency or school may re- quire the employee to continue taking leave until the end of such term, if— (A) the leave is of greater than 2 weeks du- ration; and (B) the return to employment would occur during the 2-week period before the end of such term. (3) Leave less than 3 weeks prior to end of term If the eligible employee begins leave under subparagraph (A), (B), or (C) of section 2612(a)(1) of this title or under section 2612(a)(3) of this title during the period that commences 3 weeks prior to the end of the academic term and the duration of the leave is greater than 5 working days, the agency or school may require the employee to continue to take leave until the end of such term.