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California, Took medical leave, now employer trying to "document"

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  • California, Took medical leave, now employer trying to "document"

    I became temporarily disabled August 8th, 2006, and returned to work Nov 28th. 2 weeks after returning my employer attempted to give me a oral written warning (the first warning) stating that I missed work on August 8th, and a couple other frivolous reasons. I objected, and said that I thought I was being discriminated against for taking the leave. They re-wrote the warning removing all the incidents and gave me a generic, I have poor work ethic, and untimely on deadlines. I have the original copy of the warning which ONLY has the missed day of August 8th. Now its obvious they are trying to get me out the door, as my work performance has been a constant for three years. What can I do?

  • #2
    Has anything happened as a result of this one warning? Has anything happened since you returned to work 4 months ago? Have you missed deadlines?
    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.


    • #3
      Originally posted by ElleMD View Post
      Has anything happened as a result of this one warning? Has anything happened since you returned to work 4 months ago? Have you missed deadlines?
      Well I was out of work due to stress. My son is seriously ill, and I had a great deal of FMLA time that I also took through-out 2006. My son has a extremely rare condition (51 cases documented). Yes I missed 1 deadline, that was set by my supervisor, but this is a matter of opinion. I am a computer engineer and was given 3 test servers to build for a customer. I was asked by my boss to complete them within 5 days. This seemed reasonable since the servers were already located at our data center. I had a meeting with the customer and found out that the hardware requirements for 1 of the systems was not right and had to order some hard disks. So I told my boss that it was on hold due to hardware (told him this the day before the deadline). The day after the deadline he asked me if I built the OTHER 2 servers. I again told him the customer is aware that the boxes won't be available until hardware is ordered. He told me i was wrong and I should have built the two boxes. I stayed until 11pm that evening building the boxes. He put in the write up that I missed that as a deadline. The customer to this day still has not used the boxes, and it is normal for our customers not our supervisor to impose deadlines. I even asked my other co-workers if they would have put all 3 boxes on hold, or build the 2, then the last one when hardware arrived, everyone on my team agreed they would have put all three on hold.

      Has anything happened to me? Well other than feeling like i did before I went off on disability due to the stress they are putting me under (my son has had 3 million in medical in the last 13 months, and my job is his medical benefits). I was denied working Presidents day because he was concerned I wouldn't do enough work. I am keeping ALL my customers happy--my work comes from a "queue" of "tickets" handed out by my boss, and managed by us. I am closing all the tickets and keeping everyone happy. My customers love me, my boss says its not enough, that the other people on the team are putting in 55+ hours a week. (i'm salaried) I explained to him I'm doing the work put in my queue. I have a doctors appointment on Tuesday and I'm thinking he is going to pull me again, my employer is fully aware that my condition is stress related (generalized panic disorder, with panic attacks).

      I tried to transfer out of the department applying for a job right when I got back to get in a less stressful position, and it got denied because by the time the interview process/reference check process came to be they where able to hand me this write up. Can't transfer for 90 days. I even asked HR if it would effect my transfer they said no, which caused embarrassment--I would have withdrawn my application had they said YES it would effect a transfer.
      Last edited by samg916; 02-22-2007, 01:39 PM.


      • #4
        OK, how much time total did you take off during 2006 for either your own or your son's medical condition? Not that it matters that much as you were out for at least 16 weeks and only the first 12 are protected by law. After that, it is entirely up to your employer whether to grant leave and there is no protection from retaliation from taking additional leave.

        It doesn't matter that you felt you had a good reason for missing the deadline or whether the customer used the product to prop open doors, you did miss the deadline and you waited until the last minute to inform your employer that would happen. Further, you didn't do the portion of the job that you could do, which is an entirely legal reason to write you up.

        Unless your condition rises to the level of a disability (which isn't clear as stress isn't a disability; panic disorders can be) and you request a reasonable accommodation to work fewer hours, your employer can hold you to the same 55 hour a week standard as your coworkers. Being exempt does not mean you get to decide how much worktime you put in.

        I understand you have a lot on your plate right now and your priorities are understandably elsewhere but there is a limit to how much your employer can be expected to accommodate those other priorities. They also do need to consider the effect this has on your coworkers and production as well. It seems they have already gone above and beyond in granting you the time off you need to take care of your son and your own health.
        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.


        • #5
          August 8th was still a protected FMLA day I ran out at the end of August. My company has a policy which allows 1 year of medical leave for yourself, of which I used 4 months. As for the deadline, I mentioned to my boss before the deadline, the day before would be ample time for me to complete the other two boxes, and he appeared to be aware that the project was on hold due to hardware, he made no mention of the two boxes until after the deadline expired, and I couldn't even move forward until the day before because the customer had not yet stated that all three would work, until the day before they thought all three would need an upgrade before proceeding. As I said I have the original warning that was written Dec 8th, which only included the protected FMLA/Disablity day nothing about performance, my boss is unaware that I have this document. It appeared that my boss gave me a deadline that he knew couldn't be met--when I gave him my update he was fine with it. Doesn't that fact that he litterally tried to write me up for something that was missed on a protected FMLA day -only- and than ADDING frivolous claims to it, blatant discrimination? They even removed the complaint of missing work, which took up 90% of the warning content, it in the final version after I said it was discrimination!


          • #6
            Since they removed the part about the day that was protected by FMLA, they didn't break the law. You can't cite them for discrimination or retaliation based on an error that would have been a violation if not corrected. Since you did miss the deadline it is awfully hard to claim it should have been overlooked based on nothing more than you had taken protected leave earlier in the year. It may be unfair but the only effect on you is that you can't transfer for 90 days which is not enough of a penalty to meet the requirements for retaliation. It doesn't materially affect your employment, pay, benefits and wouldn't be something so detrimental it would cause the average employee to forgo using FMLA for fear the same would happen to them.

            While company policy may allow for one year of leave, after 12 weeks it is no longer protected by law. While it may be unfair to penalize you for making use of a company policy, it is entirely legal. You took nearly 25 weeks off in 2006 which is a lot no matter how you slice it. Claiming that any retaliation is only the result of taking those first 12 protected weeks is going to be an uphill battle. Coupled with the fact that one written warning that only prevents a transfer for a short time is not a materially adverse action and you really don't have much of a claim.

            You might find it unfair that you were written up for missing the deadline but that doesn't translate into illegal. It sounds like it wasn't taking the day off on August 8 that was what you were originally written up for but rather something that was supposed to be done that day which wasn't. In that case, it would not have been illegal to hold you responsible for whatever that deadline or task was. FMLA doesn't exempt you from your employer's regular work deadlines and requirements, only attendance. They may have withdrawn the warning in fairness to you if it was beyond your control that something wasn't done but just claiming a day as FMLA doesn't mean they must discount anything that should have happened.
            Last edited by ElleMD; 02-22-2007, 02:36 PM.
            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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