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work suspension unlawful? Kentucky

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  • work suspension unlawful? Kentucky

    My husband is a city Driver for a regional LTL carrier. He has been approved for FMLA leave by the company HR dept. We believe the company using retaliation tactics to either get him to quit or (more likely) fire him. Three issues:

    - he was written up for not calling in before two hours when he took an FMLA day.

    - he was then charged with a preventable accident when a tree branch broke off the antenna on his truck - for which no one has ever been warned, written up or charged in the past or even since.

    - Lastly, he has been suspended for not reporting an "incident". He was called into his terminal managers office and questioned about a delivery he had made three months prior. Was advised that the customer had filed a claim against carrier for damage done to driveway. Customer did not report damage until 30 days after supposed incident. Upon reflection my husband said he did remember his ICC Bar scraping the driveway - but no physical damage was done to drive and receivor said it "was no big deal - it happens". It left a scuff mark on the drive no physical damage. Company is now saying that a groove was cut into the drive and claiming my husband did it at that time. We have pictures.

    Employer is suspending him for not reporting incident at that time. Husband protests saying there was no 'incident' as there was no damage and no complaint at time of delivery. He then questions that isn't there policy that you have to be given a verbal and written warning before you can be suspended? They said they've done that on two other situations listed above and have the right to suspend.

    To be suspended for this - does the verbal and written have to be for the same problem in order to suspend. Or can it just be for anything as employer is saying?

    We know that the next incident if there is one will end in termination and are told that you can't do anything until you are fired in regard to FMLA. He has never had a chargeable accident in his 13 years of driving and has a perfect driving record. He is being treated unfairly and unjustly - can anything be done?

  • #2
    He can legally be written up for not following call in procedures, even for a day covered by FMLA. FMLA is not a get out of jail free card for anything related to the absence.

    I don't know how you can be so sure that no one else has ever been written up for preventable accidents. Employers are not required to make disciplines public. How do you, or he, know what is in someone else's personnel file?

    In the same vein, how do you know that the customer did not complain?

    I'm not trying to give you a hard time; I'm pointing out some of the problems I see with a potential claim at this time.
    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


    • #3
      Completely understand the writing up on the not following call-in procedures. Am not disputing that. Just didn't know how that could be applied to suspension for another situation.

      Our information comes solely from word of mouth from his co-workers and from day to day routine within the company for the past several years. Disciplines do not have to be made public for everyone at a 'terminal' to know who is getting in trouble for what and how they were disciplined, albeit wrong, it becomes common knowledge and the drivers often discuss what they feel is a wrong judgement amongst themselves. First hand experience with the antenna deal - another driver did the same thing the same week and was not written up or charged. This information came directly from the other driver in question.

      The employer stated that the customer did not call in the damage until 30 days after the fact. Who knows how many carriers delivered to that dock within that time frame or even the two months after that when my husband was approached. At time of delivery the receivor acted like it was no big deal.

      Not taking it as a hard time - I appreciate your insight. Please advise.

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      • #4
        Why do you think any of this is retaliation for having applied for FMLA?
        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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        • #5
          Because previous to his being approved - there was not one single disciplinary action taken on Kevin. He had been late before - no write ups/ no verbal. But after he got the FMLA approval - they started riding him hard - even fellow employees asked why they were "singling him out" and what did he "do to make them mad?" He had one conversation with his boss who told him that the FMLA was just a cushion and he should think about getting another job.

          Main question: Can a company suspend you based on a verbal and written write up on two completely different situations? Or in this instance, should he have had a verbal and written for not reporting and incident and then be suspended? or can they use the two completely unrelated documented disciplinary actions as a preclude to the suspension?

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          • #6
            There is no legal requirement regarding verbal or written warnings. If the employer thought the recent incident deserved a suspension, they can do that.
            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
              Originally posted by Carla Baker View Post
              Main question: Can a company suspend you based on a verbal and written write up on two completely different situations? Or in this instance, should he have had a verbal and written for not reporting and incident and then be suspended? or can they use the two completely unrelated documented disciplinary actions as a preclude to the suspension?

              Most employers will use any prior disciplinary actions toward a progressive discipline policy. It would be extremely rare for an employer to follow the verbal, then writtten, then suspension progression for each and every offense. That would mean an employee could "get away" with any given offense 2 times before getting in substantial trouble. Meanwhile as long as they kept comitting different offenses the employer would be stuck tolerating it. The fact that he has prior write ups could very well be the reason his employer is singling him out. It is far more likely that is the case rather than that he applied for FMLA.
              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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