This Article argues that Department of Labor regulations should continue to require employers to make a pre-leave designation of whether FMLA leave will run concurrently with, or consecutive to, the employer’s leave and give notice to their employees, but that the penalty for an employer’s noncompliance should be modified to comply with the Supreme Court’s decision in Ragsdale v. Wolverine World Wide, Inc. These conflicting positions are evaluated by analyzing the rationales behind the dicisions to impose or not to impose employer notice requirements. This Article argues that the courts should require employers to notify employees whether employer-provided leave runs concurrently with or consecutively to FMLA leave, but that the penalty provision in the regulation should be modified to require a factual showing of harm by aggrieved employees and to impose a penalty equivalent to the harm suffered.

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