3d Cir. Model Jury Instr. (Civil) 10.4.3

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Last updated March 2026

not been denied or lost to the employee, any actual monetary losses sustained by 31

the employee as a direct result of the violation, such as the cost of providing care, 32

up to a sum equal to 12 weeks (or 26 weeks, in a case involving leave under section 33

2612(a)(3) of this title) of wages or salary for the employee [can be recovered by a 34

plaintiff]. 35

29 U.S.C. § 2617(a). An award for these non-wage-related monetary losses is contingent upon the 36

plaintiff’s not obtaining an award for lost wages. This instruction therefore provides that the jury 37

is to reach the question of monetary losses other than lost wages only if it finds that the plaintiff 38

has not proven damages for lost wages. 39

40

The FMLA does not provide for recovery for emotional distress or pain and suffering. 41

See 29 U.S.C. § 2617(a). Although the Court of Appeals has not addressed this issue in a 42

precedential decision, other Courts of Appeals have reached this conclusion. See, e.g., Farrell v. 43

Tri–Country Metro Transp. Dist of Or., 530 F.3d 1023, 1025 (9th Cir.2008); Brumbalough v. 44

Camelot Care Ctrs., Inc., 427 F.3d 996, 1007–08 (6th Cir.2005). 45

46

In accordance with 29 U.S.C. § 2617(a), the court must double the amount of any damages 47

under the FMLA, as liquidated damages, unless the defendant persuades the court that the violation 48

was in good faith and that the employer had reasonable grounds for believing that the act or 49

omission was not a violation of the FMLA— in which case the court has the discretion to limit the 50

award to the amount of damages found by the jury. 51

Attorney Fees and Costs 52

There appears to be no uniform practice regarding the use of an instruction that warns the 53

jury against speculation on attorney fees and costs. In Collins v. Alco Parking Corp. , 448 F.3d 54

652 (3d Cir. 2006), the district court gave the following instruction: “You are instructed that if 55

plaintiff wins on his claim, he may be entitled to an award of attorney fees and costs over and 56

above what you award as damages. It is my duty to decide whether to award attorney fees and 57

costs, and if so, how much. Therefore, attorney fees and costs should play no part in your 58

calculation of any damages.” Id. at 656-57. The Court of Appeals held that the plaintiff had not 59

properly objected to the instruction, and, reviewing for plain error, found none: “We need not and 60

do not decide now whether a district court commits error by informing a jury about the availability 61

of attorney fees in an ADEA case. Assuming arguendo that an error occurred, such error is not 62

plain, for two reasons.” Id. at 657. First, “it is not ‘obvious’ or ‘plain’ that an instruction directing 63

the jury not to consider attorney fees” is irrelevant or prejudicial; “it is at least arguable that a jury 64

tasked with computing damages might, absent information that the Court has discretion to award 65

attorney fees at a later stage, seek to compensate a sympathetic plaintiff for the expense of 66

litigation.” Id. Second, it is implausible “that the jury, in order to eliminate the chance that Collins 67

might be awarded attorney fees, took the disproportionate step of returning a verdict against him 68

even though it believed he was the victim of age discrimination, notwithstanding the District 69

Court’s clear instructions to the contrary.” Id.; see also id. at 658 (distinguishing Fisher v. City of 70