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What to Do About an Employer's FMLA Violations

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  • 03-04-2019, 10:10 AM
    NyTngirl
    What to Do About an Employer's FMLA Violations
    My question involves labor and employment law for the state of Tennessee

    Back story:
    I had lumpectomy on Sept 14th for breast cancer. My husband's asked for fmla protection but took off 3 days(paid) to help me after surgery and that was all he wanted to take off. His job made him take off the whole 2 weeks that the doctor wrote on the form. Then he worked the next 2 weeks overtime and all. His boss asked him on a Tuesday how I was and he said I was good and started Radiation the next day. Well the HR lady came right down with fmla paperwork and told him to get them filled out. I took them to my appt and by Friday he took them back to work.m,we wrote in it that he would not be taking any days off unless there was complications.
    Well then they started calling him off with a new excuse everyday or he would go in and they would send him home. This went on till Dec 19th. He told hr numerous times he didn't want to be in fmla and they said ok just come back tomorrow but they kept calling him off. He asked for unemployment but they said they wouldn't give it to him because they had him "technically" under fmla. Well we get a certified letter on dec 10th that says his fmla is exhausted on Dec 18th and he has to come back on Dec 19th or be terminated. Well like every week they called him off everyday and even tried calling him off on the 19th but my husband didn't answer the phone but showed up at work. The night shift supervisor was outside the gate ans told him he couldn't come in. We got denied unemployment because they said he didn't come back from fmla which is a big lie and we have our hearing next week for that. My husband had perfect attendance with no write ups in the 5yrs he was there. We're think he got let go because of my cancer treatment costs to the company.
    We spoke to an employment lawyer and will get the ball rolling soon.

    Anyone ever heard of an employer doing this to employee that had perfect attendance and no write ups in the 5yrs he was employed there.
  • 03-04-2019, 10:29 AM
    PayrolGuy
    Re: FMLA Violations
    Quote:

    His job made him take off the whole 2 weeks that the doctor wrote on the form.
    That was the correct thing for them to do. And that sounds like about the last thing they did correctly.

    Two actions he should take.

    Appeal the UI disqualification https://www.tn.gov/workforce/unemplo...-decision.html

    Look into taking action via the DOL or a lawsuit for an FMLA violation. https://webapps.dol.gov/elaws/whd/fmla/13.aspx
  • 03-04-2019, 10:35 AM
    hr for me
    Re: FMLA Violations
    That's a very inept employer/HR department.

    https://www.dol.gov/whd/regs/compliance/whdfs28i.htm

    "Time that an employee is not scheduled to report for work may not be counted as FMLA leave. If an employer temporarily stops business activity and employees are not expected to report for work for one or more weeks (e.g., a school that closes two weeks for the winter holiday, or a plant that closes for a week for repairs), the days the employer’s business activities have stopped do not count against the worker’s FMLA leave. "

    Umm,....if they called him off due to THEIR reasons, they can't count that against his FMLA allotment....so no he would generally not have used 480 hours. He needs to document every time he took off due to HIS request vs theirs....

    Usually I don't see great employee sided cases, but in this one unless you are explaining something incorrectly, he has a good case of FMLA retaliation.
  • 03-04-2019, 10:35 AM
    NyTngirl
    Re: FMLA Violations
    The doctors put in there that I would take 2 weeks to get better. He took off 3days with pay and just wanted the protection just in case. He planned to go back on the next day but they called him off just about every day. If your on fmla they can't call you like that.

    I documented every day he went in and was sent home and have call logs of the 53 days they called him off of work. Normally was third shift supervisor calling anyone from 3-5am. Husband worked at 630am
  • 03-04-2019, 11:49 AM
    cbg
    Re: FMLA Violations
    I'm glad to hear that you're talking to an attorney because if what you've described is accurate (and I have no reason to disbelieve you) your husband's entire HR department needs to go back to HR school.
  • 03-04-2019, 02:11 PM
    NyTngirl
    Re: FMLA Violations
    Thanks. He said we would file in June. We just don't them to think they can do this to someone else. I wonder how far up the chain this went and of we will hear from corporate about it.
  • 03-04-2019, 04:10 PM
    hr for me
    Re: FMLA Violations
    Quote:

    Quoting PayrolGuy
    View Post
    That was the correct thing for them to do. And that sounds like about the last thing they did correctly.

    Two actions he should take.

    Actually since he wasn't off for his own serious medical condition, they couldn't ask for fit for duty and while he had up to 2 weeks protected, that doesn't mean he HAD to take the two weeks. In the end FMLA usage is up to the employee....even if it was a block amount...if he was able to return after 3 days (had other care or no need for care for his wife), they shouldn't have forced him to stay away.
  • 03-04-2019, 05:48 PM
    NyTngirl
    Re: FMLA Violations
    Is there anything you would tell me that we should do that we aren't. We will go after them for fmla violation and ada discrimination. I don't know what the next steps are and what we are looking towards
  • 03-04-2019, 05:59 PM
    jk
    Re: FMLA Violations
    I’m not even seeing him being off for 12 weeks at the time they said his Fmla leave ran out.

    Where are you seeing an ada issue?
  • 03-04-2019, 06:00 PM
    PayrolGuy
    Re: FMLA Violations
    Quote:

    Quoting hr for me
    View Post
    Actually since he wasn't off for his own serious medical condition, they couldn't ask for fit for duty and while he had up to 2 weeks protected, that doesn't mean he HAD to take the two weeks. In the end FMLA usage is up to the employee....even if it was a block amount...if he was able to return after 3 days (had other care or no need for care for his wife), they shouldn't have forced him to stay away.

    The employer has a right to schedule based on the 2 weeks that they were notified the EE would be out.

    Quote:

    Quoting NyTngirl
    View Post
    Is there anything you would tell me that we should do that we aren't. We will go after them for fmla violation and ada discrimination. I don't know what the next steps are and what we are looking towards

    Ge a lawyer ASAP for the FMLA violation (I don't see an ADA violation). File for the UI appeal. There is a time limit.
  • 03-04-2019, 06:04 PM
    cbg
    Re: FMLA Violations
    Quote:

    Quoting NyTngirl
    View Post
    Is there anything you would tell me that we should do that we aren't. We will go after them for fmla violation and ada discrimination. I don't know what the next steps are and what we are looking towards

    You very well may have a FMLA violation but you do not have a claim for ADA discrimination. He is not entitled to any kind of ADA accommodation for anyone's disability but his own, and a condition that would be resolved in two weeks wouldn't qualify for the ADA even if he were.
  • 03-04-2019, 07:31 PM
    NyTngirl
    Re: FMLA Violations
    Breast cancer treatments go on for years. My case will be 7-10yrs. Exams, oncologist, scans and hopefully no reoccurance.

    When an employer fires an employee "who merely has a relationship or association with an individual with a disability," it may trigger legal action under the ADA, the Employee Retirement Income Security Act (ERISA), and/or the Family and Medical Leave Act (FMLA), says Michael Grubbs, a labor and employment lawyer at Sherman & Howard in Phoenix, Arizona.

    McPhail claimed discrimination under all 3 acts and wrongful termination under Arizona law, saying that he'd been fired because of his wife's disability and Cox's speculation about further time off–plus the insurance costs to the company of his wife's cancer (some $5,000 per month; his health care plan was company-funded). An Arizona court has ruled in favor of McPhail, refusing Cox's attempt to have the case dismissed.

    How could McPhail invoke the ADA? In what Grubbs describes as a "somewhat overlooked provision of the ADA," there's a prohibition "excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association."

    An example of associational discrimination? The Equal Employment Opportunity Commission offers this one: "An employer may not treat a worker less favorably based on stereotypical assumptions about the worker's ability to perform job duties satisfactorily while also providing care to a relative or other individual with a disability."

    The 2nd time they had him off his last day he worked was oct 19th and they fired him dec 19th. They called him off everyday during that time. They would let him collect unemployment because they said they had him under fmla which my husband told them he didn't want to take fmla days.
  • 03-04-2019, 07:46 PM
    cbg
    Re: FMLA Violations
    I think you'll have a very hard time making that stick. You're on much stronger ground with FMLA.
  • 03-04-2019, 08:18 PM
    jk
    Re: FMLA Violations
    Quote:

    Quoting NyTngirl
    View Post
    Breast cancer treatments go on for years. My case will be 7-10yrs. Exams, oncologist, scans and hopefully no reoccurance.

    When an employer fires an employee "who merely has a relationship or association with an individual with a disability," it may trigger legal action under the ADA, the Employee Retirement Income Security Act (ERISA), and/or the Family and Medical Leave Act (FMLA), says Michael Grubbs, a labor and employment lawyer at Sherman & Howard in Phoenix, Arizona.

    McPhail claimed discrimination under all 3 acts and wrongful termination under Arizona law, saying that he'd been fired because of his wife's disability and Cox's speculation about further time off–plus the insurance costs to the company of his wife's cancer (some $5,000 per month; his health care plan was company-funded). An Arizona court has ruled in favor of McPhail, refusing Cox's attempt to have the case dismissed.

    How could McPhail invoke the ADA? In what Grubbs describes as a "somewhat overlooked provision of the ADA," there's a prohibition "excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association."

    An example of associational discrimination? The Equal Employment Opportunity Commission offers this one: "An employer may not treat a worker less favorably based on stereotypical assumptions about the worker's ability to perform job duties satisfactorily while also providing care to a relative or other individual with a disability."

    The 2nd time they had him off his last day he worked was oct 19th and they fired him dec 19th. They called him off everyday during that time. They would let him collect unemployment because they said they had him under fmla which my husband told them he didn't want to take fmla days.

    Your sounding like an advertisement. Treatment for breast cancer varies greatly. It can be a relatively short treatment or if it is non responsive it can continue for a lengthy time. Many long term treatments will not be classified as a disability as it does not affect a person to an extent it will be classified as a disability.

    As to firing s person for an association with a person with medical issues being an fmla isssue: fmla does nothing more than allow up to 12 weeks per year of leave where the employee cannot be penalized. Once thst time has been used, the employee can be fired if they miss additional time from work.


    Comcerning ADA: first, the condition has to be determined to be a disability. Depending on the treatment, it may or may not qualify as a disability. It takes more than the word “cancer” for it to be a disability. It actuslly has to be a disability as described by the law to be a disability. I have no idea as to how limited your activities are so I can’t guess as to whether it may be or eventually may be a disability. Even then making the argument you have is far from a sure thing.

    Don’t get me wrong: it does sound like your husband has been treated unlawfully. I just don’t see the possible clsims you have stated outside of the fmla violation. .
  • 03-04-2019, 09:19 PM
    NyTngirl
    Re: FMLA Violations
    I sound like an advertisement?
    I take offense of that. I was just starting the facts in my case. Do you not understand that treatments cause other problems like lymphedema, joint pains, breast pain,osteoporosis,eye problems ect. Just because someone has surgery and radiation doesn't mean they are healed.

    I don't know what the lawyer means but he is the one who told us about ada. I will ask him once we're go for the unemployment hearing phone call in his office. I came asking for advice not to be yelled at.
  • 03-04-2019, 09:45 PM
    jk
    Re: FMLA Violations
    Quote:

    Quoting NyTngirl
    View Post
    I sound like an advertisement?
    I take offense of that. I was just starting the facts in my case. Do you not understand that treatments cause other problems like lymphedema, joint pains, breast pain,osteoporosis,eye problems ect. Just because someone has surgery and radiation doesn't mean they are healed.

    I don't know what the lawyer means but he is the one who told us about ada. I will ask him once we're go for the unemployment hearing phone call in his office. I came asking for advice not to be yelled at.

    treatment MAY cause other issues. Whether they are truly disabling is specific to each individual patient. I happen to know a breast cancer survivor that was “disabled” (or more accurately, unable to work) for a very short period of time. She would not have qualified as being defined as disabled for purposes of the ADA.

    Just because a person has the issues you listed, it doesn’t mean they are disabled for purposes of the ADA.


    And im not yelling at anybody.
  • 03-06-2019, 05:05 PM
    NyTngirl
    Re: FMLA Violations
    Can a moderator help me remove or edit my post.
  • 03-06-2019, 05:13 PM
    llworking
    Re: FMLA Violations
    Quote:

    Quoting NyTngirl
    View Post
    Can a moderator help me remove or edit my post.

    At the top of the thread, on the right you will see a drop down box for thread tools. There may be a delete options there. I cannot see one because its not my thread.
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