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rtsrj
02-09-2005, 10:48 AM
I’ve been with this company who has over 100 employees for over 3 years. I recently had open heart surgery the day after Thanksgiving (11/26/04) which the company was notified. The company agreed to pay my wages at a reduced rate through 2/1/05. I also filed for Temporary Disability Benefits which would make up the salary difference. I was never sent any paperwork regarding FMLA. According to our employee manual, medical leaves will be granted up to 12 weeks. It also states, “During this period the company assures the employee of full reinstatement. Failure to report back to work at the completion of the leave will be considered a voluntary termination”.

I am currently under the care of my physician who has not released me back to work. She estimates I can go back to work in April.

My employer advised me on 1/28/05 that he was terminating me for job performance and that he would pay my February wages as severance pay which he normally does not. This was a surprise to me since I have not received any formal performance appraisals from him or advised I was not performing my job.

Can he do this? Do I have any legal recourse since I was terminated 10 weeks into my disability and never sent any paperwork on FMLA.

LConnell
02-09-2005, 11:12 AM
Yes, you do have recourse if your employer did not send you the FMLA notifications. You can read more about FMLA at: http://www.dol.gov/esa/programs/whd/state/fmla/nj.htm

Sue
02-09-2005, 11:20 AM
I’ve been with this company who has over 100 employees for over 3 years. I recently had open heart surgery the day after Thanksgiving (11/26/04) which the company was notified. The company agreed to pay my wages at a reduced rate through 2/1/05. I also filed for Temporary Disability Benefits which would make up the salary difference. I was never sent any paperwork regarding FMLA. According to our employee manual, medical leaves will be granted up to 12 weeks. It also states, “During this period the company assures the employee of full reinstatement. Failure to report back to work at the completion of the leave will be considered a voluntary termination”.

I am currently under the care of my physician who has not released me back to work. She estimates I can go back to work in April.

My employer advised me on 1/28/05 that he was terminating me for job performance and that he would pay my February wages as severance pay which he normally does not. This was a surprise to me since I have not received any formal performance appraisals from him or advised I was not performing my job.

Can he do this? Do I have any legal recourse since I was terminated 10 weeks into my disability and never sent any paperwork on FMLA.

From the site Lil gave you, it states "Employee shall provide the employer notice of the expected leave in a manner which is reasonable and practicable" which tells me you as the employee had responsiblility to file for the FMLA and make provisions with your employer for its start and stop date.

When you left for leave and your employer made arrangements, did you not file for FMLA?

rtsrj
02-09-2005, 12:11 PM
I was still in the hospital recovering when I notified my employer in November about my condition and no I did not file for FMLA since my empolyer advised me not to worry that he would cover my wages while I was out. I thought our personnel department would send FMLA papers to me but they did not. Since I am now terminated from my employer, I wasn't sure if I should pursue this matter further.

LConnell
02-09-2005, 12:19 PM
According to the US DOL website of http://www.dol.gov/elaws/esa/fmla/faq.asp
Q: If an employer fails to tell employees that the leave is FMLA leave, can the employer count the time they have already been off against the 12 weeks of FMLA leave?

In most situations, the employer cannot count leave as FMLA leave retroactively. Remember, the employee must be notified in writing that an absence is being designated as FMLA leave. If the employer was not aware of the reason for the leave, leave may be designated as FMLA leave retroactively only while the leave is in progress or within two business days of the employee’s return to work.

You do have recourse because you were not given the notification.

Sue
02-09-2005, 12:42 PM
I was still in the hospital recovering when I notified my employer in November about my condition and no I did not file for FMLA since my empolyer advised me not to worry that he would cover my wages while I was out. I thought our personnel department would send FMLA papers to me but they did not. Since I am now terminated from my employer, I wasn't sure if I should pursue this matter further.


The notice from the employer comes after you file for FMLA and they approve it. They then let you know you are officially on FMLA. Since you never filed for FMLA there was no notice of FMLA status for them to give you.

Thus, if you did not file for FMLA, I do not see any recourse.

By "covering your wages" if your employer did not mean through FMLA but by his own decision, that does not cover you under FMLA unless YOU request such protection for your job and time away for medical reasons.

Therefore, without filing for or requesting FMLA, an employer has no right to "make you take it" or give you that status without your request.

Unfortunately, it appears this gesture of goodwill on your employer's part turned against you.

Federal law requires that an employer responsibility of "notice" is to post FMLA posters in a conspicuous location.

All my research indicates that you are the one responsible for requesting the status of FMLA.

Sue
02-09-2005, 12:55 PM
According to the US DOL website of http://www.dol.gov/elaws/esa/fmla/faq.asp
Q: If an employer fails to tell employees that the leave is FMLA leave, can the employer count the time they have already been off against the 12 weeks of FMLA leave?

In most situations, the employer cannot count leave as FMLA leave retroactively. Remember, the employee must be notified in writing that an absence is being designated as FMLA leave. If the employer was not aware of the reason for the leave, leave may be designated as FMLA leave retroactively only while the leave is in progress or within two business days of the employee’s return to work.

You do have recourse because you were not given the notification.

Lil, the employee did not request FMLA so there was no notice for the employer to give. Filinig for the status is NOT the responsiblity of the employer.

laborlawyer
02-09-2005, 05:55 PM
If I am understanding this correctly, you notified your employer that you were having heart surgery. Therefore, they were on notice that you were going to need leave. You said you had an employee handbook which discusses FMLA leave which probably puts you on notice that your leave will be considered FMLA leave (i would re-read your handbook). From what I am reading, it appears that you probably were on FMLA leave, but this is just based on the facts you have provided.

To me, this is also looking like a possible violation of the ADA. You were "disabled" during that time and may have been terminated as a result of your "disability." If I were you, I would tell the whole story to an investigator at the U.S. Department of Labor (probably Newark office) and see what they say. Additionally, I would talk to the Division on Civil Rights in New Jersey (they have office all over the place) regarding possible violations of the New Jersey Law Against Discrimination because of your "handicap", which is similar to "disability" under the ADA.

Sue
02-09-2005, 07:11 PM
If I am understanding this correctly, you notified your employer that you were having heart surgery. Therefore, they were on notice that you were going to need leave. You said you had an employee handbook which discusses FMLA leave which probably puts you on notice that your leave will be considered FMLA leave (i would re-read your handbook). From what I am reading, it appears that you probably were on FMLA leave, but this is just based on the facts you have provided.

To me, this is also looking like a possible violation of the ADA. You were "disabled" during that time and may have been terminated as a result of your "disability." If I were you, I would tell the whole story to an investigator at the U.S. Department of Labor (probably Newark office) and see what they say. Additionally, I would talk to the Division on Civil Rights in New Jersey (they have office all over the place) regarding possible violations of the New Jersey Law Against Discrimination because of your "handicap", which is similar to "disability" under the ADA.

FMLA is a very specific leave, mandated by law, and is not based on any presumptions or assumptions.

If an employee does not file for and get the FMLA approval, they are not on FMLA.

It looks to me like the employer may have purposely bypassed it so they could terminate the employee without the FMLA protection, but that is just a shot in the dark as to why the FMLA was not filled out.

You can have surgery and NOT use your FMLA if you choose.

laborlawyer
02-09-2005, 09:04 PM
Please read the below. You are making it seem like she has to ask specifically for FMLA leave which would be completely wrong. You have to read the law.

This is from the law:

(c) An employee shall provide at least verbal notice sufficient to
make the employer aware that the employee needs FMLA-qualifying leave,
and the anticipated timing and duration of the leave. The employee need
not expressly assert rights under the FMLA or even mention the FMLA, but
may only state that leave is needed for an expected birth or adoption,
for example. The employer should inquire further of the employee if it
is necessary to have more information about whether FMLA leave is being
sought by the employee, and obtain the necessary details of the leave to
be taken. In the case of medical conditions, the employer may find it
necessary to inquire further to determine if the leave is because of a
serious health condition and may request medical certification to
support the need for such leave (see Sec. 825.305).

Sue
02-10-2005, 10:40 AM
Please read the below. You are making it seem like she has to ask specifically for FMLA leave which would be completely wrong. You have to read the law.

This is from the law:

(c) An employee shall provide at least verbal notice sufficient to
make the employer aware that the employee needs FMLA-qualifying leave,
and the anticipated timing and duration of the leave. The employee need
not expressly assert rights under the FMLA or even mention the FMLA, but
may only state that leave is needed for an expected birth or adoption,
for example. The employer should inquire further of the employee if it
is necessary to have more information about whether FMLA leave is being
sought by the employee, and obtain the necessary details of the leave to
be taken. In the case of medical conditions, the employer may find it
necessary to inquire further to determine if the leave is because of a
serious health condition and may request medical certification to
support the need for such leave (see Sec. 825.305).

What is the url/link to the info you posted? As I posted, it still states above that the employee must initiate the request for the leave. I do appreciate the posting and would like the link.
Thanks :)

laborlawyer
02-10-2005, 05:06 PM
Per your request:
http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_825/29CFR825.302.htm

Problem is you can NEVER go by what these websites say or what the "first line of defense" at an administrative agency tells you. Most of the time, the information is not 100% accurate and simply general information. That is why everybody should really talk to a lawyer or read the actual law if you have a labor and employment issue. Initial consultations with a lawyer are usually free.


I deal with this type of issue on a daily basis. The employee does not have to specify "i need FMLA leave" before the employer can designate it as such.

rtsrj
02-11-2005, 04:29 PM
There seems to be some varied opinions regarding my situation and I thank all who have responded. I was not sure if I had any recourse since this employer is “at will” and I remember signing a document when I was hired that I understood this. By being on disability (I guess it depends on how one looks at it) and being terminated from your job just doesn’t seem right. Again thank you all for responding to my question.

LConnell
02-11-2005, 04:41 PM
I agree with laborlawyer's statement. What can you do if you were terminated improperly, re: not receiving the right FMLA notices, or if you were terminated because of a disability? You can do the following:

1) For FMLA issues, you can read the following link the US DOL's website. It is at: http://www.dol.gov/elaws/esa/fmla/faq.asp. The US DOL's wage and hour division will investigate complaints of violation of the law.

You can also contact the state as New Jersey has a similar law. You can read more about New Jersey's law at: http://www.dol.gov/esa/programs/whd/state/fmla/nj.htm

2) For issues related to disability, you can contact the EEOC at www.eeoc.gov (http://www.eeoc.gov).

laborlawyer
02-11-2005, 06:46 PM
The "at will" provision in whatever you signed is irrelevant. "At will" means you or your employer can terminate the employment relationship at any point. However, it still does not allow them to terminate you in violation of law. If they violated the FMLA the fact that you are an "at will" employee is irrelevant.

As for LConnell telling you to check out NJ's leave law, the New Jersey Family Leave Act does not cover an employee's own "serious health condition." Only the FMLA does this so don't bother with the NJFLA.


Based on what you have said, I am still of the opinion that you were on FMLA leave because you took leave based on a serious health condition and I am willing to bet that an examination of your handbook says that you get 12 weeks of FMLA leave and goes into further detail about such leave. If you were terminated after 10 weeks, I still think you should consult a lawyer or, at the very least, talk to the Department of Labor.

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