I took FMLA due to a pregnancy. I was 8 weeks into my leave when I received a phone call stating that my job was being terminated effective immediately. It's been almost 48 hours, I still haven't received my severance package and check. I have 2 questions. First, is an employer allowed to terminate an employee while on approved FMLA? Second, what is the law on receiving my final papers and check?

Severance isn't required by law. Do you have a contract that guarantees severance? Were you on paid leave or unpaid FMLA? I'm trying to determine what pay they would have sent you.

What is the reason you were terminated? You can not be fired because you took leave but you aren't protected from being fired just because you are on leave either.

You said your job is being terminated - do you mean it was being eliminated due to cut backs or reorganization for example? (or do you mean you were terminated but your job wasn't eliminated - if you were terminated w/o job elimination, why after being on 8 wks. of FMLA already?)

I was told on the phone that I would receive severance pay and all of the documents for termination would be sent. I still am yet to receive any documentation or severance check in the mail. My lay off was due to a reduction in workforce. Other people were given documentation and checks on the spot.

They claimed they did not have a position open for me so they had to let me go. Although, there was an open position with the same title as mine and the slotted someone else in it instead. Someone who did not have the education or experience or time of service that I did.

You can't be laid off because you are using FMLA, but being on FMLA does not protect you from adverse job actions that would have taken place regardless. The employer does have the burden of demonstrating that FMLA played no part in the decision to lay you off. I'd suggest contacting the U.S. DOL to file a complaint. They will investigate to determine whether this was a violation of FMLA or not.

Final paychecks are due immediately when terminated. If because you were off work the only check you would be getting was severance, I'm not sure that would also be due immediately. You can call the state DOL and ask.

Unless seniority or education was the determining factor in assigning vacancies, it is going to be hard to prove that you should have been given this other job over the one who was selected. Did you apply for that vacancy?

Thanks for your help.

The fact that you are not protected while on FMLA (or paid leave? I still don't get exactly what you were on) is abused regularly by employers. The burden for them is to show they did not opportunistically use your leave and your absence as an excuse and that reductions in force were real AND that you WOULD HAVE BEEN in that REDUCTION if you'd been there.

Preemptively saying you're not coming back to the same job, and then making a double up job, and then taking that double up job away all in the same period of time you were off, is a pretense and transparent and would not be looked at kindly by authorities. And any action by the employee would likely scare any employer into a discussion of a settlment or reemployement.
(This was an earlier case in this same string)

In your case the massive layoff is less of a transparent ruse, however, the intent, if not the letter of the law is that you will maintain pay, status, and benefits when you return, although not at the same job. Status is measured either in a real policy (seniority rules - which most employers do not have any more), or practice - you would have likely been chosen for that position that they filled with another person while you were out. The Likely tests cut both ways - would you have likely been involved in a layoff, and would you likely have gotten that job. The practice, past practices, and policy, and the actions (as well as any evidence - i.e. a manager may have said something to a personnel director or another staff member about his/her displeasure of people who are out on leave - or at the "Clinton give-away law") all have to be looked at to test whether you have a claim. If you weren't told about the new jobs and the changes in the workplace, and give a chance to opt for the job that was taken by another, you'd have a complaint just in that fact that you weren't treated to the information and the chance to get in on it simply because you were on leave. You are still an employee when on leave, and still entitled to the notices and chances for training, job options, applications, etc. Further, there is an intent and an understanding that employers have to make reasonable efforts to make the law work, as a benefit that is given to you by law. It sounds again, like your employer is making every effort to make the loopholes in the law work for him, rather than the other way around. In principle, and based only on the few facts you've given, I'd skip running this up the company flagpole, and I'd run this one right up the employer's pants legs. "I expect to be treated in accordance with the law, I don't think you are meeting that standard of care, that job that was filled by that person should have been offered to me, or held until my leave was over, and I'd like to notified in writing that it is being held. If not, I will ask the EEOC to represent me on this matter. I'd do that in person. Short and sweet.

Don't get into legalities or hostilities, and don't let the date for filing a claim pass (it runs from the date of the infraction that you knew of - generally), with promises of him/her taking care of you, don't worry....

The real shame is that winning a case is still a problem often, in that you get your job and back pay usually, but then are marked for the first layoff - unless a president or ceo is the one that returns you to work and kicks *** on the HR or dept. manager that abused you and the law.

Good luck