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  1. #1
    Join Date
    Aug 2009

    Default FMLA Violations

    My question involves labor and employment law for the state of: California.

    Your thoughts and relevant sections of FMLA that may have been violated?

    Q. Father applied for FMLA leave for care of wife after surgery with supporting medical documentation and second period for baby bonding later in the year but withing 12 month period.

    A. Administrator refused to accept FMLA form given to employee by personnel dept. or Md's. letter of medical necesity and had employee use existing family sick leave and vacation policys for application. In meeting administrator stated FMLA was never intended to grant leave to the extent member was requesting (less than 12 weeks was requested). Interferance? Chill?

    *After employee had several meetings with administration (while baby was still in NICU) leave requests were approved with pay under sick leave and vacation policys.

    Q. Employee expressed concern to imediate supervisor that he felt Administration was hostile to application and that issue would be used for denial of pending promotion.

    A. Employee was not directed but "mentored" to use shift trades to cover baby bondig period to avoid conflict with administration. Employee responded that he felt his application for leave was appropiate and should not be restricted. Disuasion of FMLA leave usage?

    *supervisor confirmed perception could be used against member in promotion?

    Q. Immediatly on return from sickleave member was given negitave performance evaluation for prior years performance citing an "agressive, overbearing and demanding" interpersonal style.

    A. No prior counseling or mentoring occured with supervisor in previous year, Supervisor stated he did not feel the problem was that serious but had been "directed" by administration to inclued the language in the evaluation.
    Chill?, Retaliation?,

    Lastly, it's about what we can prove, promotions have not been announced yet so no direct harm exists?

    Love to hear your thoughts,
    Josh F.

  2. #2
    Join Date
    Sep 2005
    Behind a Desk

    Default Re: FMLA Violations

    Employers may legally require that employees use their vacation time during their initial weeks of FMLA leave. Any such policy should be consistently applied. If that's the employer's policy, you're either looking at one of two scenarios: Burning your vacation time and your FMLA time together, or burning your vacation time but still having the potential to take full FMLA leave when your vacation time is exhausted. The employer shouldn't be forcing employees to take their vacation leave instead of putting them on FMLA, but if the employer allows the employee to do so it generally works to the employee's advantage - e.g., if you have two weeks of paid vacation you could get two weeks with pay followed by 12 weeks unpaid FMLA leave, instead of two weeks of FMLA/Vacation leave followed by the ten remaining weeks under FMLA.

    If you choose to take intermittent FMLA leave instead of taking off a block of time, that's your choice to make. I think you'll have great difficulty, after-the-fact, trying to blame your employer for leave terms that you accepted.

    If you're "agressive, overbearing and demanding" in your interpersonal style, your employer can make note of that. Even if you've taken FMLA leave. You think your employer needs to put you in counseling or mentoring before telling you about a problem? How would that work?

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