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Was laid off/fired in Texas while on STD ! Is this legal? Texas

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  • Was laid off/fired in Texas while on STD ! Is this legal? Texas

    I worked for a large trucking company in Central Tx.
    I have been on Short term Disability for 8 weeks now, I have Bells Palsy.
    Last Friday at a meeting I was invited to but was unable to attend we was told to clean our trucks out and go home. We parked our trucks at a local asphalt plant.
    The boss simply told us that, upon further investigation we found out that this boss was caught double charging for loads brought into the plant where we park and therefor the company lost the contract for end dumps.
    The men that wa at this meeting were told to clean the trucks out that the plant wanted the trucks gone ASAP/NOW.
    None of us were ever offered another job, even though the company has retained a contract with super dump trucks.
    There was 9 drivers who drove out of the plant. 2 of these drivers are on Long Term Disability, 1 is on long Term Disability and me I am on short term Disabilty.
    I and others have tried to contact the management to find out if in the future we will be offered jobs in the super dump division and have got no respnses from anyone.

    Is it legal for them to fire/lay off people on disabily and FMLA?

    Were they suppose to offer us jobs in the other divisions before firing/laying us off?

    We were all laid off/fired because a boss was being a crook ! Double charging for loads ! Is that legal?

    Thanks for any help

  • #2
    Let's put it this way; there is nothing in what you have posted that is inherently illegal.

    Now, for some more detail. Yes, it is legal to fire someone who is on STD. Yes, it is legal to fire someone who is on LTD. And yes, it can be legal to fire someone who is on FMLA. STD and LTD, in and of themselves, provide no legal protection whatsoever. FMLA does, but FMLA's protection is limited. You cannot be fired BECAUSE you are on FMLA, but FMLA does not protect you from a termination/layoff that would have happened anyway.

    FMLA does not apply in all cases. FMLA applies when, and only when, ALL of the following criteria are true:

    1.) The employer has 50 or more employees within a 75 mile radius of the employee's location
    2.) The employee has worked for this employer for a minimum of 12 months
    3.) The employee has worked for this employer for a minimum of 1,250 hours in the 12 months immediately preceding the advent of the leave
    4.) The employer and/or a qualified dependent/beneficiary has a serious health condition as defined by the FMLA statute.

    If even one if the above four criteria does not apply, then FMLA does not apply.

    FMLA is good for a total of 12 weeks. If you are unable to return to work on week 13, day 1, all bets are off and all protections gone.

    Even if FMLA does apply, that only protects you from termination/layoff that is related to the FMLA absence. It does not protect you if you are termed for reasons unrelated to your taking leave, such as an employer losing a contract. There is NO requirement that you have to be offered other jobs before you can be termed or laid off, not in this type of instance. The fact that there are other contracts does not make it illegal to term you, or create an obligation that you be offered other employment.

    The ONLY way you are going to have any kind of legal recourse (other than filing for unemployment when you are medically cleared to work) is going to be if you can come up with some kind of proof, and I mean convincing in a court of law proof, that you were only selected for layoff because you were on FMLA. NOT on STD or LTD - FMLA. The fact that employees were laid off who were not on any kind of disability is going to hurt such a claim. The fact that another employee (or maybe two; it's hard to tell from your post) was on LTD is not going to do you much good since to be on LTD, they most likely have already exceeded their FMLA, making it legal to let them go. And if there is even one employee who was retained but who is also on FMLA, your legal goose is pretty much cooked.
    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.


    • #3
      Agreed. Past that:
      - Have a legal policy for pretty much everything that someone who actually knows what the law is reviews. My last employer (Fortune 500) paid a large national company specializes in this to review all our policies annually.
      - Follow the policy until/unless the head of HR formally says otherwise ahead of time IN WRITING. If he/she makes a mistake, we know where the buck stopped.
      - Having worked for several large companies, having 100+ line managers making these types of decisions is a recipe for disaster. My last employer had a 35 person HR department and I trusted maybe one person there to make these types of decisions. And we sometimes did not agree, and would kick it over to Legal or an outside expert.
      - Follow the policy!!!!


      Slight change of subject. I am mostly a payroll/accountant. My last two payroll positions were with big companies where my staff had never read the benefit policies. One company told us we were not authorized. (Company president did not agree with HR on this point). The other company was a lot more capable. I certainly disagreed with HR about many things, but we agreed to the process to clean up the disagreements (if necessary with in house Legal or outside experts), we got a policy, and FOLLOWED THE POLICY. If long term payroll (me) and HR professionals cannot agree on what the rule should be, then time to get outside help. Time to write a policy and follow it.

      I worked for one company in the 1980s where no one including apparently HR bothered to read the 401(k) plan which we bought from an "expert". We got hit with a $250K fine, followed by a complete involuntary turn over of the HR department, for what were some fairly small technical violations. I managed to miss blame for that, but have made a point of getting copies of all benefit plans, and making d*** sure that payroll stays in complete compliance with the plans. Or talk to HR immediately if the plans are unclear or poorly written. All "ties" go to IRS during an audit. My last job was open because of a very failed IRS audit.
      "Reality is that which, when you stop believing in it, doesn't go away".
      Philip K. **** (1928-1982)


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