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  • Notice of termination while on WC Nevada

    Hello,
    I have been out on TTD for 5 weeks now, injured 07/09 never missed a day until surgery in May of this year. Prior to my surgery date I asked my HR if I needed to fill out FMLA paperwork and was told "no, it's workers comp you don't need to". Tonight I checked my mail and received a letter from our corporate office that read..."According to our payroll records, you were actively employed during the most recent payroll period, but had no payable hours and are not shown as being on a leave of absence. XXX policy is to terminate employees after the third payroll period without payable hours". It goes on to say that if I remain on active status for one more pay period with no hours they will terminate me. Can they do this? Do I have any recourse since I asked about FMLA? Any info will be helpful.

  • #2
    http://www.laborlawtalk.com/showthread.php?t=274115

    What's this intermittent FMLA you mention in this thread from 4-2010 that is unrelated to your WC injury?
    Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

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    • #3
      Originally posted by Betty3 View Post
      http://www.laborlawtalk.com/showthread.php?t=274115

      What's this intermittent FMLA you mention in this thread from 4-2010 that is unrelated to your WC injury?
      Hi Betty3,

      I'm on the intermittent FMLA from my rheumatologist for a chronic disease that gives me flare ups. Not at all related to my work injury. Will that still protect me in this instance?

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      • #4
        The 12 weeks of FMLA leave allowed per year is for ALL FMLA-qualified conditions, including OTJ injuries. The reason the employer said you didn't need FMLA paperwork completed is that they know from your WC records that your OTJ injury meets the criteria.

        It's very possible that your intermittent leave in the last year, when added to your time off since your surgery, has exhausted your FMLA leave. Although the notice really should have said that is why you are being terminated (FMLA leave exhausted) if that is the reason, such a termination would still be legal.

        However, I would call and confirm this with the employer. How do you know they don't show you as being on a "leave of absence"? According to company policy, would that make a difference if FMLA leave has been used up?
        Last edited by Pattymd; 06-08-2010, 01:02 AM.
        I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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        • #5
          Originally posted by Pattymd View Post
          The 12 weeks of FMLA leave allowed per year is for ALL FMLA-qualified conditions, including OTJ injuries. The reason the employer said you didn't need FMLA paperwork completed is that they know from your WC records that your OTJ injury meets the criteria.

          You've been totally off work for 11 months? I'm confused.
          Thanks Pattymd. I have only been off work for 5 weeks (surgery for the work injury), prior to that I was on intermittent FMLA for the unrelated illness. If that is the case (they knew from WC records) then why the termination notice for no hours worked and not being on LOA?

          Also need to clarify...when I say never missed a day, I was referring to the fact that I had no lost time from the work injury. I did miss days due to my illness. Sorry for the confusion.
          Last edited by BroncoGirl68; 06-08-2010, 01:11 AM.

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          • #6
            Originally posted by BroncoGirl68 View Post
            Thanks Pattymd. I have only been off work for 5 weeks (surgery for the work injury), prior to that I was on intermittent FMLA for the unrelated illness.
            I edited my post since you responded to it. How much time have you been out altogether (this 5 weeks, plus your intermittent leave) in the past year?
            I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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            • #7
              I must have been editing mine at the same time :-) I only used approx 5 days of the intermittent FMLA prior to going out for surgery. Apparently my location HR never informed corporate that I was out, at least that is the only thing I can figure since the letter came from corp. and not my location.

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              • #8
                This sounds to me like it is more likely a clerical error...have you called to check with the company?
                Not everything in America is actionable in a court of law. Please remember that attorneys are in business for profit, and they get paid regardless of whether or not you win or lose.

                I offer my knowledge and experience at no charge, I admit that I am NOT infallible, I am wrong sometimes, hopefully another responder will correct me if that is the case with the answer above, regardless, it is your responsibility to verify any and all information provided.

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                • #9
                  Originally posted by CatBert View Post
                  This sounds to me like it is more likely a clerical error...have you called to check with the company?

                  Called and spoke with my HR and he was at a loss for words and seemed very confused. He said he'd find out and call me back. No call so I just called him again and he said he still had no answer for me but that it looks like the term date is in the system for 06/20 and since I will be back to work on the 18th not to worry about it. I said it was a little too close for comfort because the pay period ends 06/11 which is the third pay period with no hours. Then he suggested I use vacation or sick for that Friday (6/11), I tried to tell him that I can't because I will still be paid TTD through the 18th. He didn't get it, Ughh. I guess I'll try calling corporate tomorrow. He did say that being on workers comp (along with himself) was my job protection and that is why they did not have me file FMLA. Now I'm confused LOL. Thanks for your responses.

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                  • #10
                    He did say that being on workers comp (along with himself) was my job protection and that is why they did not have me file FMLA. Now I'm confused LOL.
                    Call him back, ask that he state your job protections in writing, and overnight the letter to you...
                    There is NO JOB PROTECTION beyond what FMLA provides.
                    If it's not in writing, it doesn't exsist. Keep that in mind for the rest of your life.

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                    • #11
                      Originally posted by CAIW View Post
                      Call him back, ask that he state your job protections in writing, and overnight the letter to you...
                      There is NO JOB PROTECTION beyond what FMLA provides.
                      If it's not in writing, it doesn't exsist. Keep that in mind for the rest of your life.
                      Thank you! I will do that. One more question if you don't mind ... would I be allowed to start the FMLA process now and have it be retroactive to my surgery date?

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                      • #12
                        FMLA begins the date you request with a valid medical reason. There would be no reason to backdate a FMLA request... why would you want job protection going backwards ?. 12 weeks forward is what you'd be looking for.

                        Maybe one of the FMLA/HR experts will opinie on this...

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                        • #13
                          Post dating FML would give her protection from any attendance policies that the company has. In the original question it appears the company has a policy of so many weeks without hours will get you termed. Under FMLA that would not be allowed.

                          Also the FMLA requires a company to apply FML is the company is aware the conditions qualifies. So the company should have applied it from the start.

                          There are also reasons relating to the payment of health premiums.

                          Nevada is not a state I have employees in so I am not aware of any state laws which may come into play.

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                          • #14
                            Thanks for the replies.

                            Post dating FML would give her protection from any attendance policies that the company has. In the original question it appears the company has a policy of so many weeks without hours will get you termed. Under FMLA that would not be allowed.
                            You are correct, that is why I was asking if I could be put on FMLA now and have it back dated. Thank you


                            Also the FMLA requires a company to apply FML is the company is aware the conditions qualifies. So the company should have applied it from the start.

                            There are also reasons relating to the payment of health premiums.

                            The payment of health premiums was my next question in this mess as I received a bill today for my premium. I went to my HR today, who really doesn't seem to know what to do He seems to be clueless. He said he put me on a leave of absence in the system (not FMLA). We have to apply for FMLA through a third party who handles the FMLA and STD side of the company's business.

                            Is this something I should pursue? Is there anything they can do bout it at this point?

                            Thank you so much for your time.

                            Comment


                            • #15
                              Even on FMLA, you are still responsible for paying the same portion of your health insurance that you would be paying if you are working. While your insurance cannot be canceled as long as you are on FMLA, the law does not require that you receive it free.
                              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.

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