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  • California - on state short term disability leave. company fired me. LEGAL?

    was in outside sales. w/ documented depression (not faked). company kept contacting me about doing paperwork so THEY can say i'm on disability - i "had" to get approval from their insurance company UNUM. my doctors were not as diligent as i wanted them to be and they missed a deadline, so the company said that because i missed this deadline, i was terminated as my leave could not be substantiated by UNUM.

    (1) should they have even been asking me to do all that ? especially since i WAS ALREADY on state disability?

    (2) do i have to be considered on disability by the company too? EVEN if the state considered me on leave??

    as i understand, it's illegal to get benefits from your company AND the state. had the company been able to "substantiate" my claim for disability, that means that i would've gone to jail - right?

    (3) would their constantly calling me and having UNUM contact me = harassment?

    also, if i were to "settle" (i actually want to sue) what would be a good negotiations starting amount.

    +++ i'm female, asian, consistently awarded every year, manager - regional manager & human resources knew about my depression --- documented major depression -- regional told my dm (he told me) to "get rid of her" --"take care of this situation".

    my labor lawyer wants to start at $150K. i feel this is not a good starting point. also, she is not asking for this pharmaceutical company to pay for my legal/lawyer fees, past-future lost wages, the 1/2 year salary ($35K-ish) severance that i would've gotten had they not fired me when the whole sales force was laid off or benefits such as insurance -- i ended up paying so much money for cobra....

    thanks much

  • #2
    It is a myth that collecting disability benefits protects you from termination.

    How long, total, had you been off work when you were fired?
    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

    Comment


    • #3
      yes, i've read that, but my californian lawyer was adamant that they could not terminate me due to my state approve short-term disability. as you know, california has the toughest employee protection laws.

      time frame:

      summer 2005-
      -regional manager was made aware that i had severe depression by my manager who was not given any guidance.

      feb. 2006-
      -my manager told me that the regional was pushing him to put me on a performance plan.
      -manager suggested that i take short-term to heal so that i can be successful in getting out of "the plan".

      -last day feb 13. took vacations and sick days first. state disability approves my request.

      i was told by HR that i have to be approved by UNUM Provident - company's insurance co who administers disability as well as FMLA.

      UNUM requested medical documentations from my PCP.

      march 2006

      -UNUM-Disability department has an extended deadline to mid-april.

      -UNUM-FMLA department asked for medical documentation. when i called and asked about this, they said to disregard the request. their normal procedure is to wait for UNUM-Disabilty to approve or deny short-term leave. if approved, then FMLA papers filled. if denied, FMLA papers not filled. :: i have UNUM paper work that states i do not have to provide FMLA with papers.

      early - april 2006
      -was sent a termination letter by HR stating that my leave wasn't substantiated for FMLA so i'm fired

      -called HR to let them know that UNUM-FMLA said that there was a mistake and that HR needs to call them. HR refused and would not reinstate me.

      -UNUM-DI wanted more info.-

      -psych would not document as it is policy that they do not fill out disability papers.

      mid-april 2006
      -due date passed and my depression was still not "substantiated".

      -so we asked therapist to fill out papers.

      - got termination letter stating i missed mid-april deadline for short-term disability therefor, i was subject to company absenteeism policy. i'm fired.

      april due date
      ....but UNUM-DI still extended to end of april for me to get short-term with the the therapist's paperwork.



      so the company terminated me twice. once in early april and then again in mid-april

      ......................................

      SAME QUESTIONS AS MY ORIGINAL POST plus:

      since i was already on state disability, shouldn't they have applied FMLA? by this time, i was on high doses of two antidepressants and the worst side-effects.

      i don't understand why they insisted that i get substantiated as being depressed by THEIR insurance plan when the state already substantiated that I AM DEPRESSED and needed time.

      and why did they fire me TWICE?

      ANY CALIFORNIA LABOR LAWYERS who know california labor laws???



      ps. my sales qtr to qtr was on a positive slope.

      Comment


      • #4
        Your lawyer is wrong. Ask him to show you the statute that says you can't be fired while on state disability. He won't be able to. Even in CA, there is no law that requires an employer to hold your job indefinitely.

        If I'm reading this right, you've been out of work for over a year. That is FAR longer than any law, including California, requires your employer to hold your job.

        Yes, they should have applied FMLA. However, FMLA is for 12 weeks ONLY. A US Supreme Court case, Ragsdale v. Wolverine, makes it clear that the failure of an employer to designate leave as FMLA does NOT entitle the employee to additional time, as long as the failure does not result in the employee receiving less time than they would otherwise have received. Since you've had roughly four times the maximum required by law, claiming that you're now entitled to FMLA isn't going to get you anywhere. Look it up for yourself if you don't believe me.
        The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

        Comment


        • #5
          last day: mid feb 06
          terminated: april 2006.
          end of 12weeks was in may 2006.



          i was on vaca & sick days last two weeks of feb 2006. started SDI march 2006. was terminated april 2006. ALL WITHIN 12 wks.

          what i guess i'm saying is (and i apologize if i didn't make it more simple) that since i was on SDI, shouldn't they have applied FMLA? how can the company's insurance - UNUM Provident - deny me FMLA when the state said that i can take those 12 weeks?

          also, while already on SDI, they insisted that i was not on an approved leave of absence. THAT's why i was suppose to have UNUM-disabilty certify me so i can get disability benefits. <<remember i already had SDI >>

          their denying me FMLA while on SDI -- THEN getting terminated because they denied me FMLA --- isn't THAT illegal?


          ps. thanks for going back and forth on this with me cbg.



          Originally posted by cbg View Post
          Your lawyer is wrong. Ask him to show you the statute that says you can't be fired while on state disability. He won't be able to. Even in CA, there is no law that requires an employer to hold your job indefinitely.

          If I'm reading this right, you've been out of work for over a year. That is FAR longer than any law, including California, requires your employer to hold your job.

          Yes, they should have applied FMLA. However, FMLA is for 12 weeks ONLY. A US Supreme Court case, Ragsdale v. Wolverine, makes it clear that the failure of an employer to designate leave as FMLA does NOT entitle the employee to additional time, as long as the failure does not result in the employee receiving less time than they would otherwise have received. Since you've had roughly four times the maximum required by law, claiming that you're now entitled to FMLA isn't going to get you anywhere. Look it up for yourself if you don't believe me.

          Comment


          • #6
            FMLA and STD are two entirely different things. They can and do run concurrently, but they are not the same thing and they do not accomplish the same purpose.

            FMLA is unpaid leave time. STD is income replacement. STD is not leave time. The insurance carrier does not put you on FMLA - nor does the state. That is the province of your employer.

            If I were you I would print out the forms at this link

            http://www.ahipubs.com/forms/index.html

            under Leave. Print both of them. (You may need to register at the site but it's easy, free and immediate.) Complete/have them completed by your doctor and provide them to your employer. This is ALL they need to determine if FMLA applies. If they refuse to accept these forms and reinstate you for the duration of the 12 weeks, you can file a complaint with the US DOL. Keep in mind that they have NO obligation to hold your job, even in CA, past that 12 weeks. So if you are going to be out longer than that, it may not be a battle that is worth fighting since you will ultimately end up without a job anyway, but that's a decision for you to make.
            The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

            Comment


            • #7
              thanks for that link. i've bookmarked it.

              unfortunately, all of this was last year in 2006. i am just trying to figure out if i have some type of leg to lean on if i wanted to send a demand letter OR if i decide to go to litigation. <<like how strong is my case>>

              this is what i understand UNUM does for the company: UNUM certifies the employee's disability. if UNUM says the disability has been certified, then UNUM's FMLA side will file the paperwork for FMLA and submit.

              HR explained that they follow what UNUM says.

              since UNUM-FMLA did get info from my PCP doc, they should've done it for me. also, the vaca and sick days that i took late feb 2006 prior to starting my leave in march is a problem for them too.

              they said that my PCP didn't cover the two weeks. in my book, he doesn't have to because those were vaca days ... etc.

              i'm trying to see how strong my case is. my lawyer wants to start negotiations for a settlement at $150K. i feel that that's a low starting point. low for the fact that having to do paperwork that i didn't need to (get UNUM approval to get disability benefits and be "certified" to go on leave) and harassed by HR ... talking work with me while on "leave" ... some possible hint of racial undertones- i'm asian female.... my depression became worse because of trying to handle paperwork that i didn't even have to do! ... i can't go back in the industry because it's such a small world ... and the added stress of being terminated... they killed my confidence to do pharma sales anymore ... i have to figure out what i can do ... don't know if i can make $100K in marketing or pr ... blah blah blah...

              thanks for the link ...










              Originally posted by cbg View Post
              FMLA and STD are two entirely different things. They can and do run concurrently, but they are not the same thing and they do not accomplish the same purpose.

              FMLA is unpaid leave time. STD is income replacement. STD is not leave time. The insurance carrier does not put you on FMLA - nor does the state. That is the province of your employer.

              If I were you I would print out the forms at this link

              http://www.ahipubs.com/forms/index.html

              under Leave. Print both of them. (You may need to register at the site but it's easy, free and immediate.) Complete/have them completed by your doctor and provide them to your employer. This is ALL they need to determine if FMLA applies. If they refuse to accept these forms and reinstate you for the duration of the 12 weeks, you can file a complaint with the US DOL. Keep in mind that they have NO obligation to hold your job, even in CA, past that 12 weeks. So if you are going to be out longer than that, it may not be a battle that is worth fighting since you will ultimately end up without a job anyway, but that's a decision for you to make.

              Comment


              • #8
                Sorry, I missed that it was 2006 and not 2007. My fault.

                About all you can do at this point is contact the US DOL and file a complaint of a FMLA violation, then. You are still within time to do this.
                The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

                Comment


                • #9
                  CBG, my understanding from OP's posts is that they gave him many many opportunities to complete the paperwork for FMLA/Disability and his therapist wouldn't fill it out.

                  Wouldn't that mean that they fulfilled their end?
                  -----------------------------------------
                  98% of the population is asleep. The other 2% are staring around in complete amazement, abject terror, or both.

                  Comment


                  • #10
                    I don't know which way the DOL will go on that. You could be right.

                    But I think the fact that the OP was granted state disability should be sufficient grounds for the employer to be on notice that a serious health condition existed. Myself, I'd want to err on the side of caution in that case. It's one thing to deny FMLA if you don't have any medical verification - it's another thing to deny it if you don't have the exact forms you want to see but still have medical verification.

                    In any case, what's the OP got to lose?
                    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

                    Comment


                    • #11
                      True. And as an addedum, if it was at my current company, we would just assign it as FMLA because disability is usually much harder to get than FMLA.
                      -----------------------------------------
                      98% of the population is asleep. The other 2% are staring around in complete amazement, abject terror, or both.

                      Comment


                      • #12
                        Unum

                        Unfortunately, every employer has different rules regarding how long they will hold an employee's job when they are on disability.

                        If you are still covered by Unums STD or LTD policy (or if you were recently denied a Unum claim) you are entitled to request an IME (Independent Medical Examination). This is an independent examination by a doctor who does not work for either You or Unum. Most people do not know they have a right to this, and a lot of claims are overturned with this additional information.

                        Additionally, you may request an APPEAL in writing within 180 days. (However, you must give a WRITTEN request for appeal.)

                        Comment


                        • #13
                          Das ist in der Doktor!

                          stimpymcpusser,
                          The post you have replied to is over four years old,
                          and I'm sure the original poster's legal problems have since been resolved.
                          In the upper left hand corner is the posting date to help you.
                          Thank you

                          ..________________
                          ~ VOTE ALL INCUMBENTS OUT,
                          WE NEED TO MAKE ROOM FOR A NEW BATCH OF CROOKS.

                          Comment


                          • #14
                            It's particularly annoying in this case because within the thread, it even STATED what year it was.
                            The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

                            Comment

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