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FMLA denied verbaly Indiana

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  • FMLA denied verbaly Indiana

    I inqured about taking FMLA.
    This was done in December of 2010.
    I was vebally denied by the Safety/HR supervisor.
    reason given was not employeed long enough. I have been here since 07/2010.
    I have had previous employment with this company:
    02/2008 thru 05/2009.
    Was dropped off payroll after 30 days No FMLA was offered.
    Was due to a medical condition(TIA, now was a suspected Multiple Scelrosis attack).
    And also 07/2009 thru 09/2010(left due to missing of work & severe depression).

    1. Am I eligiable for FMLA leave?
    2. Am I eligable to file a suit on the 1st dismissal(or 2nd) for failure to provide me with proper FMLA paper work(less than 3 years ago)?
    A. Am I eligable to file suit this time also since all denial was given to me verbally & said that since I am an employee with less than 12/1250 time emloyeed?


    I am suspected with MS & have gone to different doctors & lab work,different tests peformed over 15 times since 09/15/2010. Can provide/have proof to the employeer for this. Also other days off for condition.
    I was also wondering about the labor law side of this...any suggestions?
    I drive a truck & have chronic fatigue,and othe symptoms of MS & takes longer to perform duties as compared to drivers without same conditions.

  • #2
    1. You have at least 12 months of service (doesn't have to be consecutive), but the 1250 hour counter is separate. It needs to be 1250 hours worked in the 12 months immediately preceding the date of your FMLA request, no matter if you've worked for the past 12 months or not. So, if you have not worked 1250 hours from December 2009-December 2010, you would not be eligible for FMLA.

    2 - You can contact the DOL about their failure to give you paperwork on your first dismissal. Not sure about that. Maybe those absences probably could have been covered by FMLA, but you would still need to follow procedures and report absences as required by company policy. It would have only protected your job for 12 weeks, and it appears you were out a lot longer than that.

    3 - You're the one without paperwork and a job, so the decision they made was obvious. Unfortunately, for this round they were right on not being eligible for FMLA.

    If they knew about your medical issues, they could have started a conversation with you regarding ADA accommodations for your condition. They could have sent you for a DOT physical, or a doctor's fitness for duty exam, for the driver job. I understand it's a very strenuous job, and there might not be a light-duty version of it in that company or a way to accommodate you.

    Good luck to you.

    Comment


    • #3
      1250 Hours is a question

      JJ Brown, thank you for replying on this.
      Since I drive OTR(Over the Road) my work says they don't have to compute my weekly time into hours...Although I do have to tun a log book per DOT rules & regs. So should I basically talley up my total hours driven since I started back with my company in June 2010?
      Also on my first disimissal I was off for a total of 3 months so, wouldn't that be with in the time restraints also?
      I am still working for the same company. I had inquried about the FMLA due to the number of absences I have had for the last quarter of 2010...
      Thanks again for you input on this JJ Brown

      Comment


      • #4
        I am some skepticism that your employer has given you a good answer. Very basically there is a federal law called FLSA. This law does a lot of things, but the three main requirements are:
        - Employer must keep track of all hours worked.
        - Employer must pay (at least) minimum wage based on the workweek basis (essentially an average).
        - Employer must pay overtime for all hours worked past 40 in the workweek.

        Those are the "normal" rules. There are something like 100 or so exceptions in the FLSA law to one or more of those provisions. I am generally familiar with the FLSA law and there is no OTR(Over the Road) exception. There is however a Motor Carrier exception. I will include a pointer to the actual rules for that exception, which vary significantly from those "rules" cited by the employer. The main point to this exception is that if all conditions are meet, then the overtime requirement only (but not the other two requirements) is waived.
        http://www.dol.gov/whd/regs/compliance/whdfs19.pdf

        I am not a FMLA expert (different law). Now could there be an OTR exception in that law? I suppose that anything is possible but if this is true, then the employer should be able to cite the actual exception. The nice thing about exceptions to laws is that the government tends to publish the heck out of them. I will include a cite to that factsheet as well.
        http://www.dol.gov/whd/regs/compliance/whdfs28.pdf
        "Reality is that which, when you stop believing in it, doesn't go away".
        Philip K. **** (1928-1982)

        Comment


        • #5
          I am not in the industry, but I don't think hours driven necessarily equals hours worked. Don't you have time unloading the truck or handling admin work in an office or loading dock, that isn't done behind the wheel? Hours driven may be a good place to start to see if you have 1250 in the past 12 months, but that's not every hour worked. DAW has a good point about possible exceptions and why your employer does not count your hours, but since it's a threshold for FMLA eligibility, and they're saying you don't have enough, I wonder what number they think you do have. Perhaps you should ask them to tell you how many hours you do have for the previous 12 months, to see how short you are.

          You've given more information in your next post. So let's start over.

          I have had previous employment with this company:
          02/2008 thru 05/2009.
          Was dropped off payroll after 30 days No FMLA was offered.
          Was due to a medical condition(TIA, now was a suspected Multiple Scelrosis attack).


          What reason did they give you for ending your employment? Did they know about your medical issues at that time?

          And also 07/2009 thru 09/2010(left due to missing of work & severe depression).

          I assume you meant 7/2010, not 2009. Did they know you left for medical reasons? Or did they terminate your employment due to the absences?

          I inqured about taking FMLA. This was done in December of 2010.

          Were you on any other type of leave from the company at that point, or were you terminated?

          Comment

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