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Employer did not restored my job or equivalent while on FMLA – California California Colorado Connecticut

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  • Employer did not restored my job or equivalent while on FMLA – California California Colorado Connecticut

    I worked for a recruiter for 2 years. While in my most recent and last assignment of which I had been working diligently for almost a year and was swamped with work, my father became ill, I emailed my immediate supervisor and gave him head notice of 4 weeks, I stated it was a family matter, they called it a vacation (odd of them) .

    I also asked my boss for a leave of absence, knowing nothing at all about FMLA, whatsoever because he never gave me brochures etc. I asked him for 4 weeks of leave of absence to take care of my father w/ Alzheimer’s and 90years old and who needed to be placed in a convalescent home, I was his caregiver.

    My boss asked me if there was anyone else in the family that could do this, I told him no one absolutely no one, because family members did not or would not assist me. He said fine, nothing was stated in written form of which I wish I had now.

    While I was doing all I had to do for my father, my father stopped eating, he had started his process of dying. At the end of the 5th week off I contacted my boss and told him that I wasn’t sure how much longer he had to live, on the 6th week I was overwhelmed with my fathers care and still trying to place him in convalescent home, I had to take my father to the hospital on emergency, he was there 3 days and another 3 days in palliative, I was told my father had to go on hospice, there was nothing else for me to do but keep him safe at home with me and assistance from hospice.

    I called my boss to check in with him he said I was not to return to last assignment although they expected me back, I had left my personal belongings there, he gave me no reason why, he said it was their prerogative. He said to send him an updated resume and he would find me something else. He always had in the past, right away like magic. This time he never did, he didn’t want to wait any longer for me or my father to die, so he send me a letter stating he was stopping my health insurance that to keep the insurance I had to had worked 20 hours a week, of which I hadn’t and that I would have to pay COBRA if I wanted to keep it. This I understand is another violation on his part because I read I should have been able to keep my insurance for the whole 12 weeks. I was eligible for FMLA, I met all the requirements of having worked 1250hrs in the last 12 months and I had been with the company for 2 years, the only thing I am not sure of and wouldn’t know for sure is if he has more than 50 employees, he has an architectural drafting staff in-house and the rest he places all over San Francisco Bay Area. He constantly runs ads in Craiglist and all other for drafting position I was doing.

    I was overwhelmed, exhausted, grieving, and still taking care of my father on my own worried sick I had lost my job! Applied to UI and was told I could not receive Unemployment Insurance because they claim I had quit my last job! I did no such thing. I called my boss and explained to him my situation I told him I was on family leave of absence, he said to me “Oh you want to call it that?” what more reason that my father was dying, died 9 weeks into my leave. I had to contest UI and I had no energy, I was drained after taking care of my father that my I missed the deadline to contest. I called my employer and he would not come to the phone or answer my messages, never got back to me, his wife called me to tell me they had no more work for me!

    Just recently I was told I had 3 years to file this complaint, that under FMLA my rights had been violated by last employer, that is possible I may have a case. To find a lawyer, might be difficult of which I don’t think I can afford and do I really have a case?
    Last edited by labortrashed-FMLA; 02-10-2008, 08:46 PM.

  • #2
    If there are not 50 employees for at least 20 weeks of the preceeding year, who work within a 75 mile radius of you, FMLA does not apply. http://www.dol.gov/dol/allcfr/ESA/Ti...CFR825.105.htm http://www.dol.gov/dol/allcfr/ESA/Ti...CFR825.111.htm

    It sounds like this all happened several years ago. Typcially violations must be reported within 2 years. The statute of limitations is only extended to 3 years if the violation is willful as determined by a judge. http://www.dol.gov/dol/allcfr/ESA/Ti...CFR825.400.htm

    If you were unable to work because you were caring for your father, you would not have been eligible to receive UC. This decision is made by the state, not your former employer. Not to sound harsh but if you missed the deadline, you missed the deadline. That isn't your employer's fault.
    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


    • #3
      This just happened, last day of work March 9, 2007, father died May 15, 2007, letter received on health insurance was on May 14, 2007.

      I was taking care of my father and looking for work at the same. You think that's easy to do? NO, but I did it and more!!!!!!!!!!!!!!!!

      Comment


      • #4
        Not to sound harsh but if you missed the deadline, you missed the deadline. That isn't your employer's fault.

        You are missing the whole point of all this. 1) I didn't get my job back, 2) I wasn't informed or acknowledged that I was on FMLA, 3) I should not have lost my health coverage, 4) I did not quit, I requested a legitimate leave of absence to take care of a family member with a serious health condition.

        All these in 12 week period!

        Comment


        • #5
          Your post was confusing without dates in it, so your response to elle was uncalled for. I couldn't figure out when the events happened either from the original post.

          All three factors have to be present in order to determine whether FMLA applied. If your employer did not have 50 employees within 75 miles of your job site, then you were not eligible for FMLA. You can't just guess. You need to know for sure. If you were not eligible for FMLA, then the employer didn't have to hold your job and didn't have to continue your insurance. No one here can determine if you have a case if you don't know the number of employees. If feel strongly about it, contact the Department of Labor and file a complaint. They will contact the employer to determine whether both you and the employer were covered.
          I am not able to respond to private messages. Thanks!

          Comment


          • #6
            Marketeer

            I don't see anybody else posting exact dates of when things took place unless they know it matters in their case. I am not as ignorant as you think I am that I am going to post questions or advice on a matter that happened 10 years ago. I am aware of moratoriums on labor cases or others for that matter.
            There's nothing uncalled about my response, whose side are you on anyways, you think employers don't try to get away with stuff they pull all the time, to get away with not having to take care of their employees?
            This company of recruiters has been around for more than 25 years, they ought to know about FMLA, and offer brochures to employee, nothing he doesn't care. In the two years I worked for him I noticed from my peers also how negligent he is towards employees.

            Most people that come to him on contract, temp basis just want a job for the time being and may not care, but some of us for the need we have of having to take care of family stick with the lousy jobs he sends you to without declining, hoping he (employer) will be loyal to you as you have been to him when it comes to you needing FMLA or other. You wouldn't like it either or would find it fair if he told you "Oh you want to call it that?" when you are on family leave and your father is dying! if you have no compasion for thiskind of thing then you are just as unsensible as that coward.

            They are recruiters that send people out to many architectural fims, and I mean to large firms that hire over 100 employees, I don't know how many people he employees, that depends on how many he places out there and the ones he has inhouse, aside from all that but he makes a bundel charging 2X as much for my hourly wage. I can't just call him and ask him how many employees he has.

            Yes the answer to all this is file a complaint to DOL, they should be able to find out how many employees he has.

            Comment


            • #7
              As numerous posters have said here on numerous occasions, it's not that we're pro-employer. It's that the law tends to favor the employer in most instances. All we can do is to tell you what the law is. If you're employer did not have 50 or more employees within 75 miles of your job site, then neither you nor the employer is covered by FMLA.

              For the record, I was hit by a car -- as a pedestrian -- on my second day of new job. I was walking to the Staten Island Ferry when someone ran a red light and hit me when I was crossing on a walk sign in a marked crosswalk (and then got out of her car and said I'd dented her fender.) I had no FMLA protection and lost that job -- my dream job -- after 12 weeks. After I finally recovered and was able to go back to work, the only job I could find in my field (which was fund raising, at that time) was part time, so I got another part-time job working in retail to make ends meet. I was fired from that part-time job when I couldn't get someone to cover for me on a Sunday when I needed to visit my mother who was dying on cancer (she died on Monday). I currently am staying in a job that I don't particularly like because it's a five-minute drive from the nursing home where my 99-year old grandmother lives. I am the only family member in the area for her (see above, where my mother died), but because she did not stand in loco parentis for me, FMLA does not apply to the time I need for her doctor appointments, etc. The proximity to the nursing home helps me minimize the amount of time I have to miss work, and it's the only way I can make it work right now. My husband and I just took the first vacation we've had in five years because I finally had enough PTO accrued that we felt we could do it and still have time in reserve when needed for my grandmother.

              So, I know full well what's it like to be without FMLA protection when FMLA protection would be very useful. The law has to balance the competing needs of employees and empoyers, and employers who do not meet the size standard for FMLA are not covered. Could your employer have handled the situation better? Probably. Did he do anything illegal? Not unless you can prove that it met the size standard for FMLA.
              I am not able to respond to private messages. Thanks!

              Comment


              • #8
                Marketeer,

                I am sorry for what you experienced in your life and duty as an employee. My case is not to be taken as less or more than anybody elses on this forum. I am not asking for hand me downs, I want my former employer to understand how he puts peoples lifes in jeopardy and to quit taking peoples personal lives for granted.
                I met all the requirements for FMLA, that I know if he has 50 employees or not at one time, or during my incident I am not sure, but in 25 years of business as a recruiter he must have placed thousands of people I know that. The architectural and engineering business community is a very large one in San Francisco, he is a recruiter and placement company + he has inhouse employees.
                If I call him, He is not going to tell me how many employees he has, an investigation through DOL or labor lawyer will be the only source of finding that out.

                Understand, my rights were violated, my job was not restored or equivalent position (of which he has hundreds), and he discontinued my health insurance coverage, all within the 12 week period.

                I gave him plenty of notice that I needed a leave of absence for taking care of family, that I didn't call it specifically FMLA, has nothing to do with me being not eligible.
                Please read the posts that 'laborlawyer' member on this forum has to say, now he knows what he is talking about, he explains simple and to the point, abiding by the law:

                laborlawyer wrote this to someone else on this forum:

                I deal with this type of issue on a daily basis. The employee does not have to specify "i need FMLA leave" before the employer can designate it as such.
                ________________________________________
                Please read below. You are making it seem like she has to ask specifically for FMLA leave which would be completely wrong. You have to read the law.

                This is from the law:

                (c) An employee shall provide at least verbal notice sufficient to
                make the employer aware that the employee needs FMLA-qualifying leave,
                and the anticipated timing and duration of the leave. The employee need
                not expressly assert rights under the FMLA or even mention the FMLA, but
                may only state that leave is needed for an expected birth or adoption,
                for example. The employer should inquire further of the employee if it
                is necessary to have more information about whether FMLA leave is being
                sought by the employee, and obtain the necessary details of the leave to
                be taken. In the case of medical conditions, the employer may find it
                necessary to inquire further to determine if the leave is because of a
                serious health condition and may request medical certification to
                support the need for such leave (see Sec. 825.305).

                Comment


                • #9
                  It doesn't matter whether you had the 12 months employment and the 1,250 hours. If he did not have the 50 employees, then FMLA did not apply. It takes all the eligibility criteria. If even one of those criteria is not true, then FMLA does not apply. If FMLA does not apply, the employer is not required to restore your job or give you an equivalent one. And yes, I have read the law and know what it says. No one is saying that you have to specifically ask for FMLA by name for it to apply, but ALL the eligibility criteria have to be met for it to apply.

                  If he had the 50 employees, then your recourse is to file a complaint with the US DOL. If he did not have the 50 employees, then no law was broken and you do not have recourse. If you are not sure if he had them or not, then file with the DOL and let them figure it out. I don't know what more you want us to tell you.
                  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

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