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Backdating Disability leav FMLA New Jersey

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  • Backdating Disability leav FMLA New Jersey

    My previous employer offers 26 weeks of paid leave per year (12 weeks FMLA and 12 weeks personal medical).

    In early December, 07 I was told by EAP that absences earlier in the year (May - December ) were not considered FMLA leave because I hadn't notified my employer properly and that the prior leave would fall under personal medical (it was still paid leave).

    On December, 17th '07 I was encouraged, by HR to provide documentation that would allow them to "backdate" and designate prior 2007 absences as FMLA leave, which I did (I was under the impression that this would benefit me somehow).

    On December 19th, 2007 I notified my EAP employer of the need for, what I thought would be, FMLA . The same day I spoke with EAP who said that Leave request was formally recognized would be granted as FMLA, according to EAP.

    On December, 21, '07 HR replied via email that they instructed EAP to backdate my prior sick time as FMLA, and also indicated that, as a result, my FMLA leave was exhausted as of Septermber, 17, 2007.

    Company is on holiday break between Christmas and New Years.

    On January 4th, '08, they contacted me at home to notify me that I was terminated, effective January 2nd, 2008 (for other reasons).

    On Jan 7-8, '08 I sopke with EAP about the backdating FMLA time and she said that HR ordered them to do it in this case.
    There is more here but I wanted to keep this relevant and concise.

    Is the 3-6 month "backdating" of FMLA leave allowable?
    If not, can they terminate me in this way, prior to the end of FMLA leave?

  • #2
    An employer is obligated by law to count as leave under FMLA any leave that applies. So, yes, if an employer realizes that leave should have been attributed to FMLA, then it can go back and count it under FMLA. Because FMLA is, by definition, unpaid leave, employers can require employees to use any paid leave during it. So, the paid leave offered by your employer doesn't extend the amount of time to which you are entitled.

    Also, the employer does not have to notify the employee that leave is being counted under FMLA as long as failure to do so does not mean that the employee doesn't lose any leave to which he/she is entitled. (See Ragsdale v. Wolverine). If you got the 12 weeks to which you are entitled, then the employer has met its legal obligation to you. Previous posts have indicated that you took more than 15 weeks.

    If you feel that the employer has erred, your recourse is to file a complaint with the Department of Labor. Even if you were terminated while on FMLA leave, there is no law that says you cannot be terminated while you were on it. The law says that you cannot be terminated because you are on it. The burden is on the employer to prove that it did not make the decision because a person was on FMLA leave, but it is not impossible to fire someone who is on FMLA leave.
    Last edited by Marketeer; 01-15-2008, 04:01 AM.
    I am not able to respond to private messages. Thanks!


    • #3
      Thank you for the illuminating post.

      This stuff tends to be rather confusing to me.


      • #4
        Given the number of issues that you have posted about, it might be worthwhile for you to have a consultation with an employment attorney (if for no other reason than your peace of mind).
        I am not able to respond to private messages. Thanks!


        • #5
          Thank you again for your reply.

          I have spoken with a disability attorney who has encouraged me to file an EEOC claim. I want to follow up with some of the perspectives posted here to see if he still feels a claim is warranted.

          I'll likely be able to make a decision then.

          Yes, peace of mind is a precious thing!

          FYI, I'm not sure of the feedback normally received, but this forum has been very educational for me.
          Employees aren't always privy to an employer's perspectives. Having a better understanding of the law and the reasons for an employer's actions is helpful.

          Thanks again.
          Last edited by bluloo; 01-15-2008, 06:58 AM. Reason: Edit for typo


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