Hunton Employment & Labor Perspectives

In a matter of first impression, the U.S. Court of Appeals for the Ninth Circuit recently held that whether a plaintiff with a claim under the Family and Medical Leave Act (“FMLA”) can recover front pay (and how much) is a question for a judge to decide, not a jury.  Under some statutes, such as Title VII of the Civil Rights Act, courts have express discretion to “order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement … or any other equitable relief as the court deems appropriate.” 42 U.S.C. § 2000e-5(g).  It is well established under Title VII that a court can decide to substitute front pay for reinstatement in some instances, such as when there is a significant degree of animosity between the parties or when reinstatement could displace other employees.