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Thread: FMLA/CFRA retaliation - Is my company in trouble Federal

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    Default FMLA/CFRA retaliation - Is my company in trouble Federal

    I will make this as short as possible. 80 employee family owned company spread across USA but CA employees qualify for FMLA because of temp employees that work the required 20 weeks would push it above 50 employees within 75 miles. Our HR manager (male over 40) was laid off four days before his child was born. He had completed the FMLA paperwork to take 12 weeks off to care for his newborn more than 30 days before the birth. The reason given to him for the layoff was for financial reasons cost cutting because of poor sales, the company not doing well financially. The layoff was not based on lack of work or performance as he was given a letter of recommendation by one of the owners. Problem I see is he was the only person laid off. TO make matters worse the company has hired nine additional workers, a few right before his lay off and at least five in the four months after his lay off. To top it off the company made his asst the new HR manager (female) and hired the spouse (female under 40) of one of the owners (one of the new hires) as the new HR asst.

    It just seems like we are screwed if he were to file a claim against us from the research I have done, litigation costs etc etc. The old HR manager (laid off) was a good guy well liked and never written up or anything like that. There is no arbitration agreement as the owners did not want one. I do not think he can prove directly he was let go because of taking time off to bond with the newborn but I also think the company reason for the layoff smells of bs given the new hires and raises given etc etc. With a jury I think the company would be in a lot of trouble given the circumstances and timing of the layoff. Should the company be worried and what should we do? Thanks for your response

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    If the employee completed the FMLA paper work & believes he was laid off due to requesting FMLA, he can file a complaint with the US DOL who oversees FMLA. They will investigate.

    The employer would need to prove that he would have been laid off had he not requested FMLA.
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    Hiring in other areas of the company can be done despite laying someone off. The company is allowed to decide how to allocate their staff.

    Was the Asst immediately named HR Mgr or was it a few months later?

    Depending on details I don't think the case would be as cut and dried as you believe.

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    An employee can be laid off after requesting FMLA if they would have been laid off had they not requested FMLA. However, they can't be laid off just because they requested FMLA.

    As HRinMA noted, we don't have complete details. As I noted previously; if the employee believes they were laid off just for taking FMLA, they can file a complaint with the US DOL & they will investigate. The employer would need proof that the lay off was not due to the employee requesting FMLA.
    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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    Thanks for the responses. HRinMA to answer your question yes the HR asst who did the payroll and benefits was named the new HR manager the next day and took over all the job duties that the laid off HR manager previously did. The newly hired HR Asst (spouse of one of the owners) who has no HR experience was hired about four months after the layoff. I am worried about the fact the lay off was four days before the birth (timing) and that the old HR manager was the only person laid off in the company. It seems hard to believe the lay off was because of finances and the company needed to save money when over staffed departments continued to hire other employees. The key being the company hired a new HR asst shortly (a few months) after the lay off. I know other employees within the last year were granted FMLA leave for newborns but they were all female. It just does not seem like we would be in a good position because the lay off was not performance based, not for lack of work but for financial reasons that the former HR manager could blow a hole through given the circumstances of all the new hires especially since he was replaced by his former asst and a new asst was hired to fill the gap. On paper it appears if comes to a head he would be in a stronger position. The former manager still talks to employees and knows what has happened since his departure and knows federal and state Hr laws really well. Doesn't the former manager have a year to file? It has been six months since the layoff. If you need any other info let me know.

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    Who are you in this scenario? There's a reason I'm asking.
    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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    Quote Originally Posted by cbg View Post
    Who are you in this scenario? There's a reason I'm asking.
    The new HR manager

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    Were the new hires into the same department as he was in? Do they perform the same duties he did?
    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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    Quote Originally Posted by cbg View Post
    Were the new hires into the same department as he was in? Do they perform the same duties he did?
    The old HR dept (company not that big) consisted of The old HR Manager and myself his asst and the receptionist. I basically as the HR asst did payroll and its functions along with benefits adm. The old HR Manager did all the employee relations, hiring, firing, interviewing, managed the office and front desk etc etc. Now that I am the HR Manager I am still doing payroll and benefits but taking on some of his other responsibilities like employee relations hiring firing etc etc. The new HR asst will be trained to do the timecards, state responses, trained in payroll and most of my former duties. So to answer your question both myself and the new HR asst do most of the same job duties as the old HR Manager, not all but most. The only difference is I do not manage the front desk. I was asked to and did but the front desk person and I are like fire and ice so the front desk person now has a different manager. Thanks for the help.

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    The point I am getting at is that if the nine new hires were hired into different departments and into different job duties than the manager who was laid off, that's not a clear retaliation issue. They reduced headcount; they now have two people doing what three people used to do, but from what you're telling me the reduction was in a department that generally is considered to detract from the bottom line instead of adding to it. If the new hires were into departments that generally add to the bottom line, I don't think you've necessarily got a clear cut case for retaliation and you might, in fact, have a valid defense if he were to file a claim.
    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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    CBG I appreciate your responses. Just for clarification. The old HR department pre layoff had three employees HR manager, HR asst payroll benefits, and the front desk. The new HR department four months after layoff has two employees HR manager and HR Asst. The front desk employee is still there but just reports to a different manager so in reality the department size from an HR perspective has not changed at all and costs have not been reduced.

    To answer your other point about value added and adding to the bottom line. Of the nine new positions only two could be considered to add to the bottom line. One a former sales employee and two an account manager that is taking over our largest account when the current sales rep retires at the end of the year. Of the remaining positions the bulk were added to the customer service department (makes no sense if sales are declining and we have fewer customers), a data entry person for Oracle, a front desk person for our warehouse, and the new Hr Asst. So the theory of adding to the bottom line with the new hires does not really hold water.

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    Quote Originally Posted by atomicboy View Post
    CBG I appreciate your responses. Just for clarification. The old HR department pre layoff had three employees HR manager, HR asst payroll benefits, and the front desk. The new HR department four months after layoff has two employees HR manager and HR Asst. The front desk employee is still there but just reports to a different manager so in reality the department size from an HR perspective has not changed at all and costs have not been reduced.

    To answer your other point about value added and adding to the bottom line. Of the nine new positions only two could be considered to add to the bottom line. One a former sales employee and two an account manager that is taking over our largest account when the current sales rep retires at the end of the year. Of the remaining positions the bulk were added to the customer service department (makes no sense if sales are declining and we have fewer customers), a data entry person for Oracle, a front desk person for our warehouse, and the new Hr Asst. So the theory of adding to the bottom line with the new hires does not really hold water.
    I can see the company making three arguments. First, they wanted the owner's wife in a position so they moved around others to accomplish that. Second, it was a financial decision. If old Mgr made 70k (for example) and you made 50k then the cost is 120k. Term old mgr and bring in owners wife at say 35k. That chops 35k off the finances.

    Unless you know all the behind the scenes details, it is possible there was a behavior issue with the old Mgr and the owners are allowing him to save face by calling it a lay-off.

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    Part of the analysis would be what he was making vs what the new employee (you) are making. I suspect they did not raise your pay to his prior level. Part of the anlaysis is whether he was overqualified /overpaid for the new role(s). I understand your need to process this, but I strongly suggest you be very careful in your concerns. You might be opening a can of worms that is best left to others....especially if you don't have intimate knowledge of the actual facts. Becuase I could see where they would be trying to find a place for the owners wife and the easiest place was HR assistant which would have bumped you rather than him. But in the end they probably needed your skill set more. So I can easily see an analysis where he was the best to go even if he had requested FMLA prior.......

    Hires outside the HR dept-- I can see where each of those positions bring something more direct to the company than an HR position. Maybe not direct dollars, but in terms of the actual operations......
    Last edited by hr for me; 08-01-2013 at 01:26 PM.

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    Right now, I would not worry about it until and unless a claim is actually filed. It might never come to that and you are worrying about something that quite frankly, is really best left to legal counsel and upper management. Let them handle any defense if there is to be one. You simply aren't in a position to do anything about any of this nor were you a decision maker who was privy to all the details. The ones who will need to answer are the ones who made the decision. Even if this guy files a claim, YOU should have very little to do with the case.
    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.

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    These temps - were they agency temps, or temps on your company payroll?

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