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  1. #1
    Join Date
    Mar 2019
    Posts
    7

    Default 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.

  2. #2
    Join Date
    Oct 2016
    Posts
    4,301

    Default Re: FMLA Violations

    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

  3. #3
    Join Date
    Feb 2008
    Posts
    1,179

    Default 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.

  4. #4
    Join Date
    Mar 2019
    Posts
    7

    Default 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

  5. #5
    Join Date
    Jun 2006
    Location
    Massachusetts
    Posts
    24,521

    Default 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.

  6. #6
    Join Date
    Mar 2019
    Posts
    7

    Default 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.

  7. #7
    Join Date
    Feb 2008
    Posts
    1,179

    Default 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.

  8. #8
    Join Date
    Mar 2019
    Posts
    7

    Default 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

  9. #9
    Join Date
    Jan 2006
    Posts
    38,867

    Default 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?

  10. #10
    Join Date
    Oct 2016
    Posts
    4,301

    Default 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.

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