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  • Short Term Disability/FMLA Texas

    I have worked for a fortune 25 company for 3.5 years as an office manager. Two months ago I was diagnosed with ovarian cancer and underwent surgery. I am 3/4 of the way thru my radiation treatments with chemotherapy to follow. I have been out of work for 8 weeks with a return date of Feb 13 and during this time I have been on short-term disability and FMLA. Once I notified my company about my illness and requested the time off, they brought in a temp to fill in during my absence. I learned that a few days later they hired her on full-time.

    Last week I notified my boss that I would be returning to work on the 13th. I received a phone call from my 'replacement' stating that my boss and the HR Manager would like to have lunch with me. During lunch, I was told that after assessing the situation, it appeared that the company no longer had a "need for an office manager" and that my replacement would be kept in my position as an Executive Assistant. What is interesting, is that our company has grown tremendously and our particular group as more than doubled in the time I have been there. I was, however, offered a newly created position as Corp Meeting Planner in the same pay range.

    I guess my question is....is it legal for them to have hired a replacement for MY job and do I have any recourse in getting my job back even though they say the position is no longer needed? (In my opinion, my replacement will assume all the office manager duties) I almost feel as if I am being set up for failure as this new position requires travel (which is not a problem until I begin chemotherapy) and having now to report to the HR Manager with whom I seem to have clashed with since the beginning.

  • #2
    Under FMLA you have to be returned EITHER to your own position or one that is equivalent in all respects: pay, hours, shift, seniority, status, benefits. If the position you have been offered meets these requirements, then yes, it is legal.

    If, however, the position you have been offered does not meet the equivalency requirement, you can report a potential FMLA violation to the US DOL.
    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
      CBG,
      Would the fact that the new position requires travel and the old position did not be enough for a violation of FMLA because of the change in duties?

      (That is w/o knowing if it meets the test for responsibilty, seniority, etc)

      Comment


      • #4
        If the company is restructuring the department, and the employee would have been assigned to a new position anyway, it isn't a violation.

        Just the fact that this new position requires some travel isn't enough to say for sure that it isn't "equivalent". How frequent the travel is, and how far the person must travel are all factors. It is also possible that the employee may not need to travel while still recouperating and undergoing treatments.

        In other words, it is too soon to say for sure whether this is retaliation or a violation.
        I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

        Comment


        • #5
          Did not say could not be assigned to a new position.

          But new position must have same responsibility as old.
          Eliminating a position is not equal to re-structuring a department.

          Please show me in law that gives the exceptions that you are talking about.

          If a position has a different job description or duties list, it is not the same or equivalent position.

          Comment


          • #6
            Why the belligerance, gfjhrm? We're all on the same side, here, or should be; just trying to answer questions to the best of our ability.

            http://www.dol.gov/dol/allcfr/ESA/Ti...CFR825.215.htm

            It says the same or substantially similar. That does not mean that no job duties can be changed at all.

            In addition, I believe ElleMD was referring to the fact that FMLA does not protect an employee from a change that would have happened regardless of whether they took FMLA or not.

            http://www.dol.gov/dol/allcfr/ESA/Ti...CFR825.216.htm
            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
              The department would not have been restructured and the new position would not have been created had I not become ill. I know this for fact. They are masking the change as "we're only trying to help you and make it easier for you' when I feel fully capable of returning to my normal position. As far as the travel goes, that is a wait and see deal. Of the more immediate nature, I feel as I though I will be used mainly as a 'support' person for the HR department (due to an email I received today) and this is surely not the same level position I held previously.

              I feel I should also add that we have two other divisions of our company on site and both have office managers. Neither of these positions were eliminated, if that matters.
              Last edited by Violet59; 02-12-2006, 06:29 AM.

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              • #8
                If you feel and can substiantate that the position is not equal in all respects, by all means report the company to the Department of Labor for a violation of FMLA.

                There are instances where someone is out on FMLA leave and things become more evident while they are out than they would while the person is in place. For example (and I'm not implying that your performance was in any way an issue), my previous employer successfully terminated someone while on FMLA because the fact that she really wasn't doing her job became abundantly clear while she was out. So, it may not be that they waited till you were out or took advantage of the fact that you were out. It may simply be that you're being out made things a little clearer.
                I am not able to respond to private messages. Thanks!

                Comment


                • #9
                  Originally posted by Marketeer
                  If you feel and can substiantate that the position is not equal in all respects, by all means report the company to the Department of Labor for a violation of FMLA.

                  There are instances where someone is out on FMLA leave and things become more evident while they are out than they would while the person is in place. For example (and I'm not implying that your performance was in any way an issue), my previous employer successfully terminated someone while on FMLA because the fact that she really wasn't doing her job became abundantly clear while she was out. So, it may not be that they waited till you were out or took advantage of the fact that you were out. It may simply be that you're being out made things a little clearer.
                  My job performance is NOT an issue. I've consistently received excellent reviews, raises, recognition via various company employee awards, etc. My boss and I have a GREAT relationship but the HR Manager is behind this change. I will report the company to the DOL but not quite sure how to do that?

                  Comment


                  • #10
                    You pick up the phone and you call them. They'll direct you in the specifics.

                    You can find the local phone number in the blue pages of your phone book under US Government, or by going to the DOL website www.dol.gov.

                    You'll need to wait until Tuesday since Monday is a holiday.

                    And no one said anything about your job performance.
                    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
                      Gotta love Texas Employment Laws!

                      If it one thing I have learned working in Texas for the last 4 years, it is what is legal is not necessarily moral or ethical.

                      I slipped off a ladder at work originally diagnosed as a right foot sprain, 2 weeks later was x-rayed again and found to have 2 breaks. With only a splint and ace wrap, I notified my supervisor and went home as instructed by the physicians. When I called the next day to make sure the information was passed along, I was informed I had to come to work regardless of the fact that my (right/driving) foot was not in a cast and I was taking the prescribed narcotic pain relievers. Needless to say as I was about to leave following the end of my shift, I slipped off my crutches and fell, herniating L4 and completely rupturing L5. I was told to go home until I was cleared by a doctor to return.

                      A little over a year later, after surgery, still on restricted duty, I was told to "go home and watch Oprah until we call you". I get one falsified document stating I asked for FMLA, which I did not, especially (and suspiciously one day before I was told to go home) on a Sunday (what HR person works on a Sunday?). The next week, I received yet another letter stating I was on short-term disability which was "back-dated" 15 weeks! I cannot believe that after already working the previous 15 weeks, with the same restriction they "say" they can no longer accommodate" it is perfectly legal to back-date the short term disability effective date seemingly to avoid paying the 1st 100% of my salary. I am still researching this matter with DOL. I guess there is a world of difference between the wage and hour laws as well as employment between NY and Texas. In the mean time, I have 12 more weeks of short-term disability and am waiting to hear if I am eligible for the long term disability I have been paying premiums on for the last 3 years.

                      Comment


                      • #12
                        If you have a question, Michael, we'll start you up with your own thread since it's confusing having more than one poster in the same thread.

                        If you're just commenting, you should probably realize that this thread has been dead for five years, and it's unlikely the OP will be coming back to see your response.
                        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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