I broke my leg in May and was out on workmen's comp, I beleive I exceded my FMLA by 3 days or so because my doctor was moving his office and I couldn't get an appointment. My Employer sent me a registered letter stating that my FMLA was exastued and that my job was being posted; on the day my doctor released me with no restrictions to return to work.

The next work day I reported to work with my release to full duty, and my employer informed my that my position was permately filled by one of my suborinates (who was not qualified) and I could apply for my subbordinates position but at reduced pay because I would not be the department director any longer.

My Employed never notified me tha my FMLA was going to expire, are they required to before you use it all up?

My employer won't term me because they know thay have to keep me "on the books" for a year, but I fianally won out and got employment. Can anyone tell me if I was discriminted against> I think that WV $23-5A-3 covers it but what is the relationship between loosing your position under FMLA and Workmens comp. Can they say my position was no longer available because I exceeded my FMLA by a few days.? they didn't have anyone in my position the whole time I was out until my FMLA expired, so the did without a Director for 3 months.

Please help?

The law says that you are entitled to 12 weeks, not 12 weeks and a few days.

Once you exhaust your FMLA, you may legally be fired.

FMLA does not require that they keep you on the books for a year, or at all, but I do not know WV workers comp law. Perhaps Elle will be able to address that issue. I am referring only to the FMLA portion of your question.

There is nothing magical about 1 year but your employer may not fire you while you are out receiving TTD unless you committ some other unrelated offense. If your former position is no longer available they must return you to a similar position. You also have a right to recall, which is where you are getting the one year part.

(b) It shall be a discriminatory practice within the meaning of section one of this article for an employer to fail to reinstate an employee who has sustained a compensable injury to the employee's former position of employment upon demand for such reinstatement provided that the position is available and the employee is not disabled from performing the duties of such position. If the former position is not available, the employee shall be reinstated to another comparable position which is available and which the employee is capable of performing. A comparable position for the purposes of this section shall mean a position which is comparable as to wages, working conditions and, to the extent reasonably practicable, duties to the position held at the time of injury. A written statement from a duly licensed physician that the physician approves the injured employee's return to his or her regular employment shall be prima facie evidence that the worker is able to perform such duties. In the event that neither the former position nor a comparable position is available, the employee shall have a right to preferential recall to any job which the injured employee is capable of performing which becomes open after the injured employee notifies the employer that he or she desired reinstatement. Said right of preferential recall shall be in effect for one year from the day the injured employee notifies the employer that he or she desires reinstatement: Provided, That the employee provides to the employer a current mailing address during this one year period.

cbg and ElleMD,
Thanks so much for your help.
A couple more questions... Since i was never offered any position, only told that I could apply for a much lesser position at lesser salary. Do I have a case now or do I have to wait the 1 year for them to offer me a similar position at similar pay? They never offered me a position, they only told me I could apply and I would received "preferred status"

What would be the UCR way to sue for compensation?, and lastly, Does anyone know a good attorney in the Morgantown/Eastern Panhandle of WV?

I'm unable to find any locally in my small town and would appreciate any good references. Please forgive me if that's not allowed here, I'm new to all of this.

No referrals are allowed, sorry.

As far as FMLA is concerned, if you exceed it by even one day, they do not have to provide you with any position, ever, let alone a comparable one.

I'll let Elle address the w/c law.

Since they have a year to find a comparable position to offer you, logic would dictate that you would have to wait the year before claiming that they haven't upheld their end of the bargain.

You can't sue in the traditional sense of the word. Any violations of the WC statutes would be the handled by the state as part of the WC claim.