Hi,

I work for a major telecom. In 2006, I took 12 weeks of unpaid Paternity leave to spend time with my wife and newborn. I had been with the company for approximately 5 years at that time, a little over 7 now.

Our office was having staffing issues, but that was primarily because the center director had decided not to backfill some positions, he actually pulled the postings. We had all been pulling our hair out, so a break from the stress was a welcome one.

A week after placing the FMLA package on my supervisor's desk to be signed, she pulled me into her office and put me on my very first written warning -- it was for tardiness.

Months after my return from leave, I posted for a new position and apparently was next on the list. HR called my supervisor to discuss my eligibility. She told them that I was ineligible because of the warning. The job I was up for came with a hefty salary increase also. I had two counterparts who took similar jobs during that timeframe. One guy told me that he made close to twice the year after he started than he did the prior year in ours.

My office had about 25 managers in it (like myself). When I was offered the job, I asked about policy on punctuality as I live a good distance from the office (25miles), and the route is subject to some pretty crazy traffic occasionally. I was told "if it is 5 or 10 minutes, I won't manage your desk. If its going to be longer, call to let me know where you are."

I had been in that office for a little over 2 years when this situation came up. During that time, the director had made it known that tardiness was an issue for him (ex military - if you're early, you're on time. if your on time, you're late). And while I made an effort to conform, I still felt a little territorial because I considered the flexibility to be a perk of the management position as originally offered. We're not talking 30 mins at a time, we're talking 5 or 10, but I admit, sometimes a couple times a week.

Additionally, while other managers were tardy occasionally as well, I was the only person ever written up for it...and not until a week after I put those papers on her desk.

I am admittedly biased, but feel that it is pretty obvious that I was disciplined as retaliation for taking the time off. I believe my supervisor and center director were upset that I'd take time off when they'd reduced our office to barely being capable of performing our workload.

I read somewhere that there is a 2 year statute of limitations on FMLA violations unless you can prove a willful violation. 3 if you can. The 2 year limitation would be up in the next 6 months. So, while I've stuck to my job and proven I can be a good doobie by being on time/early for the last 2 years in the hopes another of those jobs comes along (I've been eligible again now for about a year), I am really curious if I should look into counsel or not.

Any thoughts ? I won't try to tell anybody that I was an angel. I will say that flexibility was a perk I was interested in having, and one I was told I'd have.

I've worked in environments where you had only a 3 minute window for almost 20 years before this job, and never had a problem. I've never been fired from a job, and consider myself to have a pretty good work ethic. I feel I was very straight forward when I was hired, and was told the flexibility would be provided.

Thanks for any comments.
JP

Being late several times a week when you know that is a pet peeve of your manager tends to be a career limiting move. You are going to have a very hard time proving that the only reason you were written up was that you took FMLA. If you were late once that tends to look like retaliation. Being late on a regular basis, even if not by much, is quite another. When there is a justifiable reason for the write up, it is hard to prove that there is some sort of sinister motive. Were these others who were promoted as late you were as often as you? Do they report to the same person you do? Had anyone ever made a negative comment about you taking leave? Have others who have taken leave been retaliated against?

Quite honestly it sounds as though you have a bit of an entitlement mentality and that is going to be very off putting to most managers. You aren't entitled to come in late just because you are a manager. Flexibility does not mean showing up late several times a week.

I agree that being late a couple of times a week would be a good reason not to promote you, particularly since you knew the director required employees to be there on time.

It looks like it would be hard to prove retaliation due to taking FMLA unless there is more to the story. What about the answers to Elle's questions.

Hi Elle,

Thank you for your honest reply.

I can't argue with the fact that I was late. Nor will I say that my director made it any secret that tardiness was a peave. I understand why you get the vibe that I felt 'entitled.' Even tho I don't feel that is the case, your instinct is a legitimate one.

Fact is, I had a child in elementary school at the time. After his mom left him with me, I enrolled him in a private school which unfortunately does not have busses. I could drop him off no earlier than 7a, and often that meant not making it to my office until after 8a, if only by a few minutes. Also, in order to pick him up on time in the afternoon from the school's after school program, I could not move my shift back. It was a crazy schedule, and I don't miss it. A lot of good things have happened in my life since then. Ultimately, I was a single father when I was hired, and it was this arrangement which put me in a tight space. This is why I asked my supervisor (in advance of my first day) about the policy, and made my preference known.

Since my punctuality, while not a great, was established and pretty consistent from day one, I feel that it can just as easily be argued that the company knew what they were getting day one, and had been willing to work with me. I feel that the timing of this warning speaks more to the facts than the facts themselves, if that doesn't sound too crazy. ;-)

There had been several other issues in the office during that timeframe. Yes, there was a young lady that I worked with who had gotten some grief over being out for an operation, and another woman who had some problems from my supervisor even though she wasn't even her direct report. The center was actually sued by my original supervisor for wrongful dismissal.

Still, the supervisor for the other team also followed the policy of allowing a relaxed start of shift. Most of the coworkers who've heard about my situation have been pretty surprised that I got written up for tardies.

Its been an interesting few years. Still, its office politics and such that I expect you'll find anywhere.

Thanks again for your reply.
JP

Just a small clarification as the position I came up for was a lateral, not a promotion. I actually wanted to go 'outside'. Since that job was union, late hours happen. The base pay was better, and it was a given there would be OT required. I'd be giving up my management title, but the benefits far outweighed the outside factor. The office I posted for was 1/4 mile from the school I dropped my son off at every morning (2 miles from my home), so the traffic spots I mentioned would not have been an issue.

JP

The problem/reality is even though they knew you were a single father, etc. when hired, they really didn't care about your child's school schedule. They only cared about you being at work on time.

Just being late from day one does not mean they have to accept it for all time. That's like saying that because you always speed down a road and haven't had an accident, you should be allowed to always drive that speed. Sorry, but it doesn't. The fact that you might not have been late had you gotten the other position does not mean your employer had to give it to you. Not to sounds harsh but your child's school schedule and care arrangements are not your employer's concern. If your schedule was that tight and you wre having difficulty meeting the required hours as you needed to drop off and pick up your child, there would be greater concern in a job that had less supervision and required even greater hours.

What grief did you yourself get over taking leave? Anything? Did these others who were given a hard time report to the same manager as you? What another manager may have taken exception to isn't going to be relevant. If everyone who took FMLA was suddenly written up by your manager, then it starts to look like a pattern. Otherwise it looks like a few isolated instances of managers who had issues in a particular circumstance and you being written up for something you admit you did and knew your manager had a problem with.

It sounds like the warning didn't carry any real consequences until months after you took leave, which could not have been anticipated at the time of the warning. Had you put in for the transfer, then requested leave and been written up and told you were not eligible, it would look more suspicious.

Thank you again Betty and Elle for your responses.

Betty, let me start with your last reply. I have no expectation of my employer to care what my child's school schedule is. I'm afraid you've gotten the wrong impression from what I wrote. I mentioned it simply to illustrate that there was a reason why I asked about the policy on punctuality. To say that "they only cared about you being at work on time" just overlooks the fact that they told me something completely different when I asked. Please bear in mind that this is before I started working there. It is, in my opinion, the same principle as asking if a change on my cell phone plan will automatically extend my contract, or will my mortgage penalize me for paying it off early... I ask questions before I make commitments.

Those questions are intended to keep situations just like this from coming up. If they had said, "for now lets play it by ear, but it could change down the road," that would be one thing. If they said "As a manager, we will hold you to a standard which includes strict adherance to punctuality," that would be another. They did not say either of these things tho. They said "if its 5 or 10 minutes, I won't manage your desk, I don't micromanage. If it will be longer, call to let me know where you are". To me, this meant that the new job would come with the flexibility I needed and that I could rationalize leaving a job I'd been in for several years prior in order to come aboard.

Obviously, they changed their minds at some point. Thats all I'm saying. They told me one thing before I started, and flip flopped on it down the road. Unfortunately, committing myself to a job isn't as easy as taking a 30 day trial of a new cell phone. It would be nice if you could go right back to where you were before -- if things were not the way they were represented.

I do appreciate your comments, I just want you to understand that I did my homework for a reason, and was told one thing. My 5-10 minute tardies should have never been an issue if their answer to that question had not changed.

Thanks again for the comments tho.

Elle, as you can see, I love analogies too. The only exception I take to yours is that speeding is understood to be against the law from day one. There was no agent at the drivers license office telling me that if I go 5 or 10 mph over the limit, they wouldn't mind. You know when you get your drivers test and get your license that if you go over the posted speed limit, you can be fined. Sure it may not happen today or tomorrow, but when it does, you really can't complain. I guess my point is that the posted speed limit in my situation would have said ~8am.

And again, I don't expect my employer to care or even know about the schedule for my child's school. I mentioned the proximity to my home and his school to illustrate why I would've taken a non management (lateral) job instead of looking for a promotion. Being on the road for an hour and a half to two hours every day just getting from point A to point B would've been time I could've worked OT and been paid for it. Thats all. Not to mention the stress relief.

With regards to who's manager did what... yes, it was the same manager who was involved in all 3 cases. The irony in one of those cases was that the woman she was trying to reprimand was not even one of her direct reports. The manager over her team was also known to have a 'flexible' policy about tardiness and all of his team knew this was the deal. I talked to several of them, and they were equally surprised that I was written up for it.

All I'm trying to show here is that we had all been hired under this understanding of 'flexibility' and yes, we know the director over those two managers had a bigger issue with it, but it was a widely accepted atmospere in the office that as long as we got our work done and did it right, there were no questions on exactly what was done where and when. Believe me, it was pretty hectic there at times, so if you have an image in your mind of an office full of slackers, please understand that I've never worked with a brighter and more capable group of individuals, and I am honored to be a part of it. Its just an example of a major corporation suddenly changing rules and sacrificing a well oiled machine in the process.

You stated that they had no way of knowing that the warning would affect me in the future, but I ask you to consider this. It may sound a little paranoid, but it is the whole reason I refer to it as "retaliation". I worked in an office that was short staffed and shrinking. I was going to be out for a while at a time when I'm sure my director thought I was trying to get away from the stress. I believe he was upset that I was taking time off and wanted to make sure that I had no option but to come back after my leave. The one sure fire way to do that in my company is to put somebody on a written warning.

It just seems too coincidental that the first time in two years that they chose to put me on a written warning was exactly one week after I put the forms on my manager's desk to be signed. thats all, just a little too coincidental.

Thanks again for the replies,
JP

How would giving you a warning ensure that you returned from leave?

Your biggest battle is still going to be demonstrating that the employer had no reason to object to the fact that you were late several times a week. You yourself admit you knew your manager did not appreciate this so you can not argue that you were just going with what you were told pre-hire. Even if you were told that for small amounts of time it would be alright, your employer is permitted to change their mind or find it irksome after it happens several times a week. Whether they should find it irksome is not the issue. They did and you knew they did and it is something that is entirely reasonable to find fault with. It's not like the first time you were 5 minutes late you were written up.

Unless there is some sort of policy that dictates who the other job would go to and you were that person, it is still the employer's perogative to hire whomever they wish for a vacancy. You aren't entitled to it because you want it. If they wanted to use punctuality and attendance as part of the criteria for a position that would be less supervised, they certain may. Just because they could have used other criteria or you feel they should have overlooked the warning does not mean that they had to.

When I said 'ensure', it had a lot to do with the culture of the telecom company. Most people get hired on in whatever capacity they can, and then post for more desirable positions once they complete what they call 'time in title' (usually a year to 18mo). In this scenario, I meant that the one way to make sure that I did not post out for another position while I was on leave, or immediately upon return was to limit my ability to post out. A 12month warning meant that I would not be considered for any moves, regardless of the reason for the warning. So, the fact that it was for tardies did not have any bearing on getting the position or not, it was that there was a warning on the record at all.

Since we've established the fact that I was wrong according to their newer standards, and could've been written up a year and a half earlier, and at just about any point afer that, I thought the only battle was going to be proving that they did it when they did it because of the FMLA request. I thought that the courts would entertain the notion that they hadn't written me up in all the time that they could've if they'd wanted to, but chose to do it suddenly when they were upset I was taking leave. I guess I'm too use to a phrase our legal department throws around a lot "even the appearance of inpropriety". I was hoping that somebody would tell me that my trip to see the lawyer was a good idea given that coincidence, but maybe its just as well I've tried for as long as I have to just forget about it.

And, for what its worth, yes, there is a policy which dictates job offers in the company. Essentially, any union represented employees and any management that is "one step out of representation" (a first level manager) who post for a represented position would all be lumped into a pool, sorted by seniority date, and then the offer would be made in that order. If they called my supervisor, then i was up for it. Its pretty much that straight forward. In the contract environment, for better or for worse, its all spelled out.


Thanks again for your time.

Writing you up because they don't want you to be able to take other positions because of internal changes and reorganizations is legal. I'm not saying it is a good way to do business, but it is legal.

Had the warning been something more concrete, it may have looked more like retaliation. A warning on its face is not an adverse employment action. It didn't change your pay, title, job, seniority, benefits or other material aspects of your employment. Not everything you don't like or is negative is enough to sustain a retaliation claim.

Its going to be very difficult to tie the lateral move you desired to the leave taken months before. Even then it is a toss up that the denial of a lateral move would be considered adverse. A regular scehdule, working in an office and being a member of management are typically things that employees desire. The fact that you happened to want other things makes it more of a subjective preference and those aren't actionable.

Thank you for your time. I can't say that I agree with all of your arguements, but it gives me a real good idea of where the company will be coming from should I decide to take it any further. All good information in my opinion.

Thanks again,
JP