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Denied Make Up Hours on FMLA

Discussion in 'Medical Leave & Disability' started by youareceo, Feb 24, 2018.

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  1. youareceo

    youareceo Law Topic Starter New Member

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    I am a former manager at a workplace and keep in contact with some of my peers. It came to my attention that a female employee, who is over 50 and having a serious health condition, had FMLA filed and approved on for an intermittent condition. She is full time and worked for over the year and hours.

    I hate to steer the conversation, but please don't question the reasoning behind the FMLA and it's approval - it's set in stone which means we don't need to dissect it nor why she needs it. She IS able to perform her job duties when not experiencing an issue, cannot work when she does experience one, and she is safe at work until experiencing the issue.

    The environment is automotive dealership, which means some of the traditional HR procedures are similar to automotive union, like where the First Aid Kit is, *vacation time paid lump sum annually, etc. This particular company is so paranoid of unemployment they hired a consultant who trained managers. Maybe they had an EEOC, wrongful termination or OSHA enforcement about it, who knows...But I genuinely think, based how I wanted terminate troublemakers at will, that they are intentionally avoiding legitimate unemployment. This is their call center. Saturdays are on a two person a shift rotating basis with comp days built in.

    Before I transitioned to a new company, a few things were true:
    1. She had an increasing attendance problem. (Cause)
    2. Making up hours was directed by upper management as only when there was a business need, unless they used approved time off with no distinction between paid and unpaid.* (Enforcement)
    3. She was one of the employees the new manager, who I trained, was looking at dumping for attendance. (Malice)
    4. The handbook says nothing about an attendance policy, except that you need to be at work and your manager is the judge of it. Their consultant told them to create a universal policy over a year ago. (Policy)
    5. There is an attendance problem with non approved (therefore non FMLA protected as well) leave and time compliance in the call center. (Situation)

    They changed the rules to no making up hours when absent. They did not clarify whether this is on approved time off or unplanned, which is a red flag but I'm sure not illegal. It's true they need a stronger policy manual or they are eventually going to get sued and lose. But I digress!

    The employee in question filed FMLA last Tuesday (over a week ago). She again experienced an episode on Friday last week (she is off Saturdays by rotation), then off Monday and Tuesday. So she got a Dr's note. On Tuesday morning, while absent, FMLA was approved by the CFO and HR. No adverse employee action about this absence.

    On Thursday, she was told with the entire group there was no make up time, as stated above. Employee asked in person if she had FMLA, if she could make up time, manager said would take into consideration but might be able to work something out. I don't think that will happen because...

    Today, I found out they had a call off. The person called in (whether by offer or by request) was someone who already has 40 hours this week. She is earning overtime while the FMLA protected employee, who offered yesterday to come in if they were short, sits at home. She offered in advance because the two in today are the worst absentee unplanned offenders.

    Obviously, that was a really DUMB business decision (to pay OT rather than stay on budget for labor). And it's certainly unfair, which a lot of favoritism at all levels happens here. But is it illegal? I think if she was not FMLA protected it would be. But, I ask with the FMLA protection, is this discrimination of wages on someone who has FMLA?
     
  2. cbg

    cbg Super Moderator

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    FMLA is supposed to be transparent. If there is a rule that there is no make up time, then there is no make up time. If someone who is not on FMLA cannot make up time, neither can someone on FMLA. It is in no way illegal discrimination of any kind to hold someone on FMLA to the same rules as someone who is not - that's what they're supposed to do.
     
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  3. army judge

    army judge Super Moderator

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    I wanted to reply, but waited for the experts to respond.
     
  4. youareceo

    youareceo Law Topic Starter New Member

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    So, from your answer may I take it that their may be a claim, if she finds that approved time off can make up time, and she cannot?

     
  5. cbg

    cbg Super Moderator

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    Before I go any further, I want to know who you are in this scenario. As I understand it, you no longer work for this employer?
     
  6. youareceo

    youareceo Law Topic Starter New Member

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    I will restate my opening, apologies for the lack of clarity:
    "I am a former manager at a workplace and keep in contact with some of my peers."

    I am no longer employed there and left voluntarily. I won't comment on my replacement's performance, although I have walked a mile in her shoes. And if we are looking for a hidden reveal, perhaps it helps to say I am the "FMLA employee in question's" former manager at the place she currently works. Let me know what else I can provide, your answer was tremendously helpful.

     
  7. cbg

    cbg Super Moderator

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    Since you are no longer employed by this company, how they manage their employees is none of your business, nor are you necessarily aware of everything that is currently going on. Sorry, but your attempt to force me to agree that they are doing something illegal is not going to happen. Since on the evidence they are not.
     
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  8. youareceo

    youareceo Law Topic Starter New Member

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    I'm not sure who put lemon in your coffee, but this reaction is 100% unwarranted. I am not asking you to agree to anything. And I am sure this actually matters to the employee, a friend of mine (who by the way is watching this thread, I sent her the link earlier this AM). I bet she is very impressed by the warm reception. A "no that wouldn't matter" is sufficient answer enough, without a callous insult.

    If I had posted on behalf of the employer, I would be worthy of a response? Good to know no one is interested in helping someone out unless they pick a side first, which seems to be your accusation to me. Stop confusing my clarifying questions as leading a witness, please.

    Look, people's assumptions are not troll bait for you to flame just because you are a Super Admin. Everyone has their perceptions, and I speak on behalf of 90% of the non Juris Doctors when I say we are going to ask loaded questions. The only difference is mine will be loaded on logic and not the law. And, YES some if not most people are going to hope for confirmation of what they think. Assuming you practice, have you ever had a client that came in and acted like they think nothing and know nothing? That sounds like no one I know with a legal problem. And someone else who has a similar issue, including other employers, might be happy to find out the answer.

    I hold my questions for more complex legal matters, which this seemed to be one. Next time I post, don't ask me a question so you can ask me to sod off. Answer or don't post. I ask, what exactly is the purpose of this forum, if one can't ask an intelligent question? Is it so you can make fun of people asking questions and stroke the ego? Sounds your audience is not who you publish, kids.

    I hope I get a better welcome, albeit with an equally accurate response, in a different thread. I would appreciate either a bit of an apology for your curtness, or less insults to my intelligence and personal interest.

    Your feeling about why I am asking the question, and my interest to it, is far less relevant to the question than how I want it answered, which you state should completely irrelevant. (Post unfollowed)

     
  9. youareceo

    youareceo Law Topic Starter New Member

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    Wow, I should have known better than to ask questions of a forum where this is in the sig of a Super Moderator! You guys are looking for troll bait, aren't'cha?

    Stupidity is the only universal capital crime the sentence is death. There is no appeal. Execution is carried out automatically without pity
     
  10. cbg

    cbg Super Moderator

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    From your first post you've been attempting to control the responses. We're not to question this - we're to take your word for that. That's not the way it works.When you post on a public board, looking for free advice from volunteers, you don't get to decide how the responders are to answer. From what you've said, there is no legal violation. What might be the case if the facts were different, is irrelevant. And it's really not as cut and dried as you are attempting to make it. It isn't as simple as, "An exception was made for this person who isn't on FMLA - therefore the FMLA person must also have an exception made for her." There are other factors that have to be looked at and FMLA is not the only law on the books. That's why I'm suggesting that perhaps you would need to be personally involved and know all the details, instead of knowing the details that one person provides second hand, before you can effectively present the issue.

    And what does someone else's sig line have to do with my answers?
     
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  11. youareceo

    youareceo Law Topic Starter New Member

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    While I am sorry for your misconception, you are taking my intent from implication. This is not accurate. Let me tell YOU how human communication works: You don't get to tell me and everyone else what I am trying to do. You can state that is your opinion. And, unlike your legal interpretation (as a JD) and how the help board work (as a SuAdmin), you are free to be dead wrong. Consider the legal matter we have between us settled.

    The sig has a lot to do with what I see as a chip on your shoulder, in fact most shoulders on help boards and how they respond to what they see as stupidity. The sig clearly wants to let others know SuAdmins on this site are gunning at them for the slightest misstep.

    That baggage isn't being taken out on you. What is directed at you is, your insistence you are right about my intentions to manipulate(?) and "we're to talk your word on that." If I take your word on what the interpretation of the law is, then you have to take my word on what I intend to do. Not because I am the one who did it or anything, of course. I mean, that can't be right just because you can read it differently than I intended it or it was written.

    To your counsel to what is accurate and my involvement, correct I may not know all the facts. That being said, I don't think it wise to get more personally involved, because of the volatility of the replacement towards management, consultant and her staff. They collectively like me and I will keep it that way. In fact, CBG, I was really trying to save my former employee from going to an attorney unnecessarily over something that may be nothing and jeopardizing her standing at a company that is paranoid about the sue happy. And apparently there is nothing wrong, which is just as good to know just as something is not legal. I would hope the whole point of these boards is to stop people from pissing around in court when it's nothing. Mission accomplished.

    I think your title (here) and experience (IRL) doesn't give you - or anyone - the right to flame people just because its the Internet and you are behind a keyboard. If this is your intent (and notice I ASKED not ACCUSED), note I didn't tell you I didn't like what you were doing until you made it a bit personal. See, as a poster, it's apparent okay to ream me out or accuse me for whatever issue you can substantiate on ten paragraphs from me but not about me, but when I do it I can get banned as a troll. Speaking as the guy who published his real photo, "one who uses an avatar." You like apples?

    I'm the guy asking a legit question in what I thought was a complex situation, not trying to frame an opinion. Attorneys are would be about the DUMBEST target I could pick to attempt that upon, short of a sales manager, should I really wish.

    I thought I turned this follow off, and we've both got better things to do.

     
  12. cbg

    cbg Super Moderator

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    You do realize that I'm not an attorney, right? That I'm an HR Manager, who has first hand experience working with FMLA? I gave you a clear, straightforward answer with no attitude and you attempted to turn it around. When I asked a legitimate question, you threw a fit.

    I'm glad you're satisfied with the answer because it's all you're going to get here.
     
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