Comments on: Answers to tricky HR questions: Laying off an employee on FMLA leave

By: Christina

Christina — Mon, 11 Jan 2010 23:32:19 +0000

No. Depending on the state in which you work, you have no legal rights unless you can prove you were terminated based on being in a protected class (even this depends on how small the company is). If you were wrongfully terminated, odds are the wife would have reinstated you. Many states are employment at will states, which means you can be terminated for any reason at any time as long as it does not violate law. Depending on your state, your check may come on your regular pay day or should have come within 24 hours. You can easily google that info and complain to the dept. of labor if you were not paid on time. No employee is entitled to a severance that I know of – it is a nicety that not all employers give. At my company, a week is pretty good and is only given out if it really is a RIF and not for cause. RIFs do not need to be last hired first gone . . . those decisions are made based on which positions the company can do without.

I think you’d be wasting your money suing. Check out dol.gov if you’ve got some time. It lists all of the employment laws and you can probably search according to your state.

By: Angie

Angie — Sun, 10 Jan 2010 21:15:02 +0000

I work for a small company. I am a 46 year old single woman. Two coworkers, who are also family members, decided that we needed a reduction in work force. I was the one picked to get terminated. They had the field manager tell me. He is not someone that I work for. The owner and his wife were out that week. I was let go. I called the wife, who is an officer of the company. She said she didnt know about it until after. The president was told it happened after also. I received no paperwork or paycheck. The wife said she was sorry. I was not the last hired. Three people were hired after I was, including the 23 year old daughter. Is this a wrongful termination? I only was told I would get a week’s severance. I asked the wife and she didnt know who came up with that number. Do I have any legal rights?

By: Christina

Christina — Thu, 31 Dec 2009 19:53:31 +0000

hmmm… since you have less than 50 employees, he is not entitled to FMLA. You are free to follow your attendance policy the same way you do with other employees until termination. Check your state laws, though.

By: Don

Don — Wed, 30 Dec 2009 00:24:14 +0000

We are a small company of 15 employees, with a QC dept. consisting of only two. In the last 13 months one of the QC employees has been out on disability twice. Once for three week and currently on her second round of disability. This is a problem for our small company having only one QC inspector. Are we allowed to lay off or terminate the employee on disability so we can hire another person for this position?

By: Nancy

Nancy — Mon, 31 Aug 2009 16:21:16 +0000

I have an employee who is in a position where reliability is critical. He has been having some attendance issues which are affecting his job. He has been warned that this is becoming an issue (documented) with a 30 day correction plan. Part of the plan included no more absences for at least 30 days. Now, I just received notice that he is going out on a disability. Can I terminate him, or is he protected by FMLA?

Thanks!

By: Heather

Heather — Fri, 07 Aug 2009 19:12:35 +0000

Christina,

Thank you so much.

Would you mind if I had your email?

It would be so helpful if I could ask you questions when I get stuck!

You can email me at HR@ffpglobal.com if you don’t want to leave it here.

I really do appreciate all the help you’ve provided.

By: Christina

Christina — Fri, 07 Aug 2009 18:50:27 +0000

12 weeks of FMLA = 480 hours.
I keep a spreadsheet for employees on intermittent leave where I know tracking the hours will get tricky. Next to each day they use leave, I write the number of hours and have a running total so I can update them when they approach the 480 hours.
It also helps track the year’s total, because after a year they can start all over again!

By: Heather

Heather — Fri, 07 Aug 2009 18:41:08 +0000

Christina,

I guess I would have to ask then how many hours does 12 weeks of FMLA translate into?

In your example, 6 hours would be FMLA, but what percentage of her 12 weeks is that?

By: Christina

Christina — Fri, 07 Aug 2009 18:30:57 +0000

Heather,

Wow! That would be really frustrating.

The FMLA regulation says that FMLA needs to be counted in the smallest increment of time you record for payroll. For example, our timeclocks go to the minute, so we have to calculate FMLA to the minute. Other companies round to the hour, so they count hours of FMLA and have to round one way or the other.

Missed time would be based on the employee’s schedule. So if I work 8 hours each day and I only worked 2 . . . 6 hours would be FMLA. But if I had a variable schedule where every other day I worked different hours, then it would be based on the schedule. You don’t want to take FMLA from someone for time they would not have been at work on a normal day. Don’t get this confused with scheduled time off. If she scheduled off 4 hours ahead of time, you can still count it as FMLA if it seems logical. She can be sick at home just as well as anywhere else.

By: Heather

Heather — Fri, 07 Aug 2009 18:21:29 +0000

Christina,

Thank you, that answers my question exactly. I really appreciate your guidance. Our HR Director was just laid off 2 months ago and HR was kind of set in my lap, so I’m learning as I go.

On another note, when it comes to intermittant FMLA leave. How are days counted.

For example, if an employee is out for an entire day, that obviously counts as 1 day. However, suppose an employee has severe morning sickness and shows up to work 2 hours late, does this also count as 1 day? Say she was scheduled for 8 hours the day she was 2 hours late, does it count as 0.25 of a day? Or say she was only scheduled 4 hours for that day, does it count as 0.5 of a day?

Is missed time based on 8 hour work days or number of hours they are actually scheduled for that day?