FMLA: Company Policy vs. Law
My question involves labor and employment law for the state of: Washington
Ready for a long story: I put in for 4-6 weeks of FML. At my job site there are fewer than 50 employees (about 25), so legally I understand that my company is not bound by FMLA, however, company policy states that despite this employees are entitles to the same benefits. I have earned enough PTO and vacation to be paid for the full 12 weeks I'm entitled by company policy.
I've offered to continue working 2 days per week to continue producing a product that no one else is trained to produce.
My boss came back and told me that to do this I would have to convert to non-exempt from exempt. I've not heard of an employer doing this before. So considering this, the fact that my employer has a history of shady HR practices---one long-time employee wonders why someone hasn't sued, yet, I need to make sure I'm protecting myself.
What are the legal ramifications of moving from exempt to non-exempt?
But there's more...we are immediate post-merger and some employees have related to me that they feel like they are being forced out...and are obviously being hired around. Even after I brought my FML leave request to my boss, the following Monday the big boss calls me in in and begins brainstorming ways I can care for my daughter, who was just diagnosed with a debilitating genetic disorder, fill my duties and "not use all that time off," in the words of the big boss.
Additionally, big boss showed me a job description of a new position...but the new position is my position...same duties...with a VP title and much higher salary range. He said we can post this ASAP or wait for 60 days while we figure out what I'm going to do. I told him I was a little shocked. And he agreed that there wasn't a thing on the description that I couldn't do better than a new person, if only due to the fact that there will be no learning curve.
I was stunned and felt like I was being given an ultimatum of taking FML and having a new boss upon my return...who happenes to be doing my job...or wait for 60 days and "possibly" getting a promotion. I new they were hiring an additional team member...but not a boss for me. I started keeping a log at that point. Later that day big boss came back and decided to make clear one point...after talking to the general counsel (my boss) and the HR person: "I was not trying to talk you out of family medical leave."
So, my second question is this: does the company have to comply with FMLA because it is its written policy and not a requirement of law?
Third question: Were big bosses actions legal: pressuring me to NOT take family medical leave?
Re: Fmla: Company Policy vs. Law
They not only do not have to comply with FMLA, in at least one sense of the word they may not.
Eligibilty for FMLA is set by Federal law. The company does not have the authority to change it, regardless of what company policy says. The DOL will NOT recognize what leave you take as FMLA unless ALL the qualifications are met. The DOL will not enforce the FMLA protections since the company is too small to be subject to it. On the flip side of that coin, any time you take now cannot be deducted from your FMLA allotment should your employer become subject to it in future.
It is unlikely that the company policy is legally enforceable, but only an attorney in your state who has read all the associated documentation can say for certain. But it will NOT be considered FMLA and FMLA protection will NOT apply.