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get employer to give me FMLA or provide some other job protection in writing? Texas

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  • get employer to give me FMLA or provide some other job protection in writing? Texas

    I became an employee of a 1,000+ employee corporation hired on officially perm FT in May of this year, 2011. For the previous 6 months (since December 2010) I was on-site at the company performing the same work I do now, 40 hours a week, only I came in as contractor/temp employee. I worked through an agency.

    I am going to need to take maternity leave starting in January or February 2012.

    How do I provide incentive (and document precedent?) for the corporation to fold my temporary/contractor time into my official employee time? see below:

    **"In addition, the circumstances in which temporary employees may claim rights under the Family Medical Leave Act -- which provides the right to take leave while taking care of a child, sick spouse, or elderly parent -- depends on whether the company exercised some control over the selection, hiring, and working conditions of the employee, thereby creating an employee/employer relationship."**

    I believe the corporation did exercise this control, and anyway I want to present it to my manager and/or HR as: 'I'd like to continue investing in the company, and for that I need to know the company is making an investment in me!' ...i.e. my message is - make sure my job is protected in writing and will be there when I come back.

    The corporation offers Short-Term Disability, which I am enrolled into.

    My concern is that with this big machine of a corporation: a) they would come up with a snazzy reason to let me go right before I would go on maternity leave with paid STD, leaving me and my family without a financial plan,

    or b) that if I am out on non-FMLA maternity leave, my job during those 12 weeks would disappear or go to someone else in the meanwhile [ my boss and I have a good relationship, I've gotten awards, and our department needs lots of help now, but Advertising is notoriously fickle and I don't sense great loyalty from the other two girls on my team; I think they would be ok pushing for a replacement while I was out of sight, out of mind and might even make the case that they could train someone quickly -- if this non-loyalty is truly the case I would rather cut my losses and take on a new job right now and work at least a little bit before 2012! ]

    What would y'all do in this situation and what real-life or legal precedents are there? From my readings, I've understood HR *does* have a say in whether they can classify me as working 12 months in an employee capacity; I just need to convince them that it's the best thing. What's a good strategic way to present this?

    thank you

  • #2
    p.s.

    OMG, I just saw this on an HR blog: ...seriously, is this common practice?!?!?

    "Honoring maternity leave when FMLA ineligible
    http://www.humanresourceblog.com/201...la-ineligible/

    Hello
    My organization follows standard and fairly common policy that if an employee requires extended leave for a serious health condiiton (pregnancy as an example), and the employee has been an employee for less than 12 months and is thus not FMLA eligible, the employee is to be terminated."

    !!!

    pardon my french, but wtf!

    .

    Comment


    • #3
      You may want to confer with an experienced attorney first to confirm that the provision you cited is indeed accurate.

      If your tenure and your hours as a temp employee for a third party contractor can count against your current employer for FMLA purposes based on your company’s exercise and control of your work activities, then your company may not have a choice in extending you FMLA leave and protecting your job while you are on leave. If, however, your time as a temp employee does not count, then you would not appear to have the requisite one year tenure for FMLA (despite the fact you will probably accrue the 1,250 hours with the company prior to taking maternity leave).

      In short, the confirmation of this provision will determine how much leverage you have with management in this regard.

      Comment


      • #4
        Have you spoken with your employer about your need for leave? Start there. Until you know what their policy is and whether you qualify for FMLA, you have nothing to base your options on. No one here can begin to guess what your employer's policies on leave aside from FMLA might be.
        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


        • #5
          Agree with Elle. You need to talk to your employer first and see what they
          say about you taking/qualifying for FMLA & then go from there.
          Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

          Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

          Comment


          • #6
            Agreed with Elle and Betty. You need to talk to your boss and/or HR and get actual information on how your company plans to treat your leave. You can then present your findings and, diplomatically, of course, argue your case. You have nothing to lose and everything to gain by doing these things.

            Another thought: if FMLA does not apply, you may want to consider taking a shorter leave than 12 weeks if that will preserve your job (and if you want to keep your job).

            Once you are eligible for FMLA you can get bonding time during your child's first year, so would be able to take more time off at that time.

            Comment


            • #7
              Originally posted by photoinTexas View Post
              p.s.

              OMG, I just saw this on an HR blog: ...seriously, is this common practice?!?!?

              "Honoring maternity leave when FMLA ineligible
              http://www.humanresourceblog.com/201...la-ineligible/

              Hello
              My organization follows standard and fairly common policy that if an employee requires extended leave for a serious health condiiton (pregnancy as an example), and the employee has been an employee for less than 12 months and is thus not FMLA eligible, the employee is to be terminated."

              !!!

              pardon my french, but wtf!

              .

              Don't mean to sound like a jerk, but here is the reality...they have a business to run! If you're not there....something isn't getting done or someone else is doing it, or even worse they will need to hire AND train someone new to do it. So, yes. Termination can be legal and reality.
              Not everything in America is actionable in a court of law. Please remember that attorneys are in business for profit, and they get paid regardless of whether or not you win or lose.

              I offer my knowledge and experience at no charge, I admit that I am NOT infallible, I am wrong sometimes, hopefully another responder will correct me if that is the case with the answer above, regardless, it is your responsibility to verify any and all information provided.

              Comment

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