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Wrongful termination while on WC and was not told about FMLA. Delaware

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  • Wrongful termination while on WC and was not told about FMLA. Delaware

    Hi folks,

    I am very new to this but I seek advice. **warning this will be lengthy**

    My name is Pamela and Friday 5-3-13 I was fired from my job. I have worked for this company almost 3 years in July. I feel that I was let go for false reasons. This has been a devastating experience and I am seeking help to see if there is anything I can do.

    Here is some back story:

    The company I work for is based in Ohio and I live in Delaware. I work in DE, MD and VA. I conduct audits for gas stations with in this region.
    I was injured on the job 4-12-13 and needed to cancel my second store for that day, so I called the DM (District Manager) for the gas station and let them know as well as my Director of Operations and my HR department. That following Monday I went to the doctors office and was told to see an Orthopedic about my situation. So I did. I kept my company well informed about my progress and kept contact with them through out this process.

    I did go on Workman's Comp and have received my first check from them. My WC was rolled back to start on the day of the injury, because I was out so long.

    My Ortho came to the conclusion that I had strained my neck on 4-29-13 and wanted me to take PT for 6 weeks and stated that I may go back to work on the 5-6-13. I told my employer about this on 4-30-13.

    On 5-3-13, I called my employer to see about making some schedule changes for my upcoming week. I was then told that I am being terminated because the gas station did not want me back and because of this I was being terminated. I really did not know what to say about this because I have a really good working relationship with all of the people I work with. Furthermore she stated that the gas station had complaints about me wearing jeans which was about 6 months ago and I have since corrected and not wore any jeans, just khakis since this notice. Secondly she stated that FasMart said I was "slamming" things which is false. The day she is referencing to is when a door slammed behind me, this was a one time incident that occurred about 2.5 months ago. Lastly, she stated that the gas station said I had a "bad" attitude, I find this hard to believe since everyone I work with gives me rave reviews.

    I contacted a DM that I work with regularly at the gas station and she says is all she heard was, I did not contact another DM who works with the gas station about me coming in on 4-20-13 and they counted this as a no show. I was out on WC and my company should of taken care of this, right?

    Also as a side note, my company never told me about FMLA, which I should have been given. They never sent me anything about this. I have never had a write up or had any corrective actions against me. Is there anything I can do?

    Should I file for unemployment?

    Any help would be super awesome

    Thanks
    Last edited by Crikee02; 05-07-2013, 05:32 AM. Reason: I put the company name in....

  • #2
    1) You need to delete the company name from your post.

    2) Did you work for the gas station or a company who provides audits to the gas stations?

    3) You mentioned being injured on 4/12/13 and then again on 4/29/13. Was it the same injury or 2 different ones?

    4) Have you returned to work in between 4/12 and 4/29?

    5) Are you sure your company qualified under FMLA with 50 employees within 75 miles?

    6) File for unemployment as long as you are now willing and able to work. The worst that can happen is you are denied. The state makes that determination not the employer.

    Comment


    • #3
      I worked for an outside company that conducted audits for the gas station.

      I worded the 4-29-13 segment wrong: I was diagnosed on 4-29-13 but injured on 4-12-13.

      I have not worked since 4-12-13.

      I am positive that my company offers FMLA, I went into our company portal (their webpage, just for employees) the day I was fired and did a mini investigation and they do offer it.

      And about the unemployment, my concern was about being on WC now, I was told not to sign off on workmans comp until I saw a lawyer, which will be this week. I am going to have to wait to talk to him about that one....it kind of seems like double dipping if I am still technically on WC and want to apply fo unemployment.

      Thanks

      Comment


      • #4
        It's not as simple as, the company offers FMLA or it doesn't. Each individual employee has to qualify, EVEN IF the company is subject to the regulation. And, because of the 75 mile radius criteria, it is possible for some locations of one company to be subject to FMLA and others not.

        For FMLA to be applicable to YOU, ALL of the above have to be true:

        1.) You have worked for the company (and this means the company that provides your paycheck - not the gas station for which you are doing the audit) for no less than 12 months
        2.) In the 12 months immediately preceding your leave, you have to have worked for this employer, the one who provides your paycheck, for no less than 1,250 hours
        3.) There must be a minimum of 50 employees within 75 miles of YOUR location. (I once worked for an employer that had two offices - one in MA, the other in PA. The MA office had 60 employees - the PA office 20. The MA office was subject to FMLA - the PA office was not.)

        Now, with that in mind, can you confirm that FMLA applies?
        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
          As for not showing up on 4/20, there is nothing in the WC regulations that exempts you from notifying your client you will not be there. Just because you were injured at work, doesn't mean your employer takes on total responsibility for everything from that point forward.


          "And about the unemployment, my concern was about being on WC now, I was told not to sign off on workmans comp until I saw a lawyer, which will be this week."

          I am not sure what you mean by this. If you haven't filed the claim, you are most definitely not protected under WC. I'm not sure why you are hiring a lawyer for a minor neck strain case that has you able to work after 6 weeks of PT. There just isn't much a lawyer can do with that and I'm not sure what you are hoping to gain, especially now that you have healed.

          As for UC, you can not collect both UC and WC at the same time but if you are now healed from your injury and able to work, you would not be eligible for WC and UC would be appropriate.
          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


          • #6
            All of those apply to myself.

            Comment


            • #7
              Originally posted by ElleMD View Post
              As for not showing up on 4/20, there is nothing in the WC regulations that exempts you from notifying your client you will not be there. Just because you were injured at work, doesn't mean your employer takes on total responsibility for everything from that point forward.


              "And about the unemployment, my concern was about being on WC now, I was told not to sign off on workmans comp until I saw a lawyer, which will be this week."

              I am not sure what you mean by this. If you haven't filed the claim, you are most definitely not protected under WC. I'm not sure why you are hiring a lawyer for a minor neck strain case that has you able to work after 6 weeks of PT. There just isn't much a lawyer can do with that and I'm not sure what you are hoping to gain, especially now that you have healed.

              As for UC, you can not collect both UC and WC at the same time but if you are now healed from your injury and able to work, you would not be eligible for WC and UC would be appropriate.
              I am a bit unclear, I suppose. I am already on WC, I had a note written from my ortho stating I could go back to my regular work on 5-6-13. I let my employer know this and sent them the release from the doctor via e-mail. Now on 5-3-13, my company told me I was being fired. I was still on WC at the time, so I called a local WC lawyer about what I should do, since I was not "offically" off of WC? She said to stay on it and do not sign anything until you talk to someone. Questions I had were: Will I have to pay for the next 5 weeks of PT if I sign off of WC. Does me signing off of WC give my company no fault in the situation meaning they will not have to take any responsibility?

              I just don't want to be on something I am not supposed to be on.

              About the 4-20-13 work day. My company made those schedule changes when I was out. So since they made them on their own, I should not be held accountable for them changing something with out my knowledge. Nor should I be punished. It feels like they just threw me under the bus.

              Comment


              • #8
                "Sign off on WC" makes no sense. There is nothing to sign on or off. You file a claim. The Carrier either pays you TTD benefits or they don't. If you don't file a claim, you don't have a claim. No one pays you anything. Just like if you crash your car but never file the claim with your auto carrier, they aren't going to pay you anything. Either way, there is nothing to sign off on so I do not know what you are referring to.
                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

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