Who won this case? She says company penalized her for taking FMLA leave
July 18, 2008 by Jim GiulianoPosted in: Employment law, FMLA, In this week's e-newsletter, Latest News & Views, Leave, Who won?
In this real-life case, a low-performer sues the company when she gets demoted after taking time off under the Family and Medical Leave Act. Who won?
The facts:
A female employee who was working full time applied for ongoing, intermittent leave under FMLA to care for an ill family member. Her supervisor approved the request. As a result of taking leave, the employee ended up working essentially about half time. Later, her supervisor, citing the employee’s low rate of productivity because of the reduced workweek, recommended that she be allowed to keep her job and continue using FMLA leave but that she be demoted. The woman sued the company, saying she was being demoted for taking FMLA leave, which is against regulations.
The employer said:
The decision to demote the employee was based strictly on her reduced productivity, not because she took FMLA leave.
Who won the case?
Answer: The employee.
Why:
The employee had been given the OK to work part time and take intermittent FMLA leave. Up to that time, her performance had been satisfactory, according to her supervisor.
But the supervisor as much as admitted that aspects of the employee’s performance dropped after and as a result of the employee’s leave-taking. The supervisor should have known that granting the employee’s request for part time would result in less productivity – and he should have made allowances for it.
So it all boiled down to a simple test: Would the employee have been demoted had she not taken FMLA leave?
The judge’s answer was “no,” meaning the company violated the law.
Cite: Lews v. School District #70.
July 21st, 2008 at 2:09 pm
I was demoted after returning to work after a medical leave of absence.
November 11th, 2008 at 9:08 am
I had FMLA in Feb for an acute appendicitis, that included exploration of my ovaries. Not knowing or being advised of how long the recovery would be, I thought I’d be back to work in 2 weeks, 8 weeks later I was back part time to eventual full time.
Sept. again needed FMLA for a severe concussion. 8 days, followed by residual symptoms that I suffer to this day. When I returned, I was informed that the Fax excusing my absence for the last two days was not received. Days later, I produced a copy along with signed FMLA paperwork.
After which I received a written warning for my excessive absentses with a threat that if I miss a day within the next 3 months I need to find something else to do. Also denial of all vacation days for which I had requested before the injury.
I understand the departments frustration, my point/question is if I’m injured or sick, why am I being treated like a “bad employee”. My productivity has never been questioned, nor my committment or work ethic.
I am not proud, or happy to be one of the people who seems to come down with everything that passes my desk. Is being denied vacation time of which I have the available hours legal under these circumstances, and is there anyway I can overturn the signed written warning? I hate having this black mark on my record for something over which I had no control. I appreciate your input.
November 18th, 2008 at 8:40 am
Boxnclox
If the paperwork that you submitted to cover your days out while on FLMA are approved, and these days are among the days that resulted in your write up, then there is a possibility that the write up can be over turned. However it all depends on the how the writeup is written.
You can not be penalized for time that was taken while on FMLA. That time is basically invisible. If there are other days mentioned in the write up and the amount of days used is within policy, then the write up can stand.
November 20th, 2008 at 12:30 pm
If you have documented conversations with an employee after they have moved from full-time to part-time because of an intermittent FMLA leave about their performance and producitvity with quantitative results of their work and there is a discrepancy between pre-FMLA and post-FMLA productivity — is the employer covered to administer any kind of corrective action/discplinary action documents to the employee based on the drop in productivity? Or, like the above article, could there be liability for the employer based on the approval of the employee moving full-time to part-time? (If the job responsibilities currently reflect the results a part-time employee should accomplish during their working hours).
Any input is appreciated it — thanks!!
November 24th, 2008 at 7:38 pm
I have a related quesion that I think was discussed some time ago, however I would like clarification. What is the legality of a manager calling an employee, who is on FLMA , repeatedly for information and to request that employee do work from home while recovering? Much documentation refers to abuse by employees, but little covers abuse by an employer.
Thank you.
Roberta
May 20th, 2009 at 4:31 pm
Employers cannot call you and ask you to do work while you are on FMLA.
June 2nd, 2009 at 9:30 pm
i was recently on fmla…our timesheets are due every friday…i was not able to complete my timesheet due to being off on fmla. I was wondering can i be written up for not being able to complete it?
June 17th, 2009 at 10:58 am
What if she was not performing half of the productivity she had at full time.
June 28th, 2009 at 7:52 am
You made some good points there. I did a search on the topic and found your blog. thanks
January 29th, 2010 at 11:53 pm
I had to contact the Department of Labor to report violation of the FMLA law, Whistle Blowing law, discrimination and retailation for reporting them and Deformation claim. I later learned that DOL can only address the FMLA Violation. After months of trying to resolve on my on I turned it over to the DOL. I recieve notification that the company was in violation of the fmla law.
Believing that for the fourth time they would realize I was right all along. They would reinstate my employment and pay me for the time I have been off and unable to get hired at any other casino because of having a being fired on my record. They offer to reinstate my employment and $200.00 as a settlement.I have been off since 1/27/2009.
In the process I have lost my House, about to loose my car, I can’t afford to go to the doctor and pay for RX,credit score have suffered really really bad,they tried to stop my unemployment by making false claims which cause me to have to wait an extra 10weeks without pay and several other problems.
I tried to avoid this by constantly contacting hr department,general manager,corporate managers,labor law,eeoc,ada,and the DOL.They just don’t care what they have put me thur.I’m NEED YOUR HELP IN ANY WAY POSSIBLE PLEASE!!!!!!!!!!!!!