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Employer forced me to make my fmla time off

Discussion in 'Employment, Labor, Work Issues' started by Duckman1952, Dec 13, 2009.

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  1. Duckman1952

    Duckman1952 Law Topic Starter New Member

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    We work every other weekend. Our employer says if we miss time on our working weekend they can schedule us the following weekend on our regular weekend off. I have intermittent FMLA and took off using FMLA (approved) on a Saturday. They forced me to come in the next weekend. I told them I don't think FMLA time off has to be made up. I did go in for that shift but I appealed it to HR. Can anyone tell me if the company can force us to make up FLMA time off? Thanks.
     
  2. theretoo

    theretoo New Member

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    No, an employer cannot deny, interfere with or otherwise retaliate against you for using your FMLA rights. Talk to an employment law atty in your area.
     
  3. mightymoose

    mightymoose Moderator

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    I don't see the problem with it... you got the time off that you requested. According to what you wrote, what they did, by scheduling you for the next weekend, was normal.
     
  4. theretoo

    theretoo New Member

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    Not if the time is required as "make up" for use of FMLA time.
     
  5. Patricia_Young

    Patricia_Young New Member

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    If they would require that of workers NOT on FMLA, they can require it of you as well.
     
  6. Duckman1952

    Duckman1952 Law Topic Starter New Member

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    thanks everyone



    I appreciate all the replies so much. Yes, My employer made it clear the reason I had to go into work this past Saturday was because I took off the Saturday before. That Saturday before was when I took a FMLA day. I told them they cannot do that. Now if they didn't say anything about my FMLA day off and just scheduled me that's fine with me but they are the ones that said cause I took off that saturday I have to make it up. Just for your info. I went to work that night and they send me after 27 minutes claiming no work was available. Thanks again to everyone.
     
  7. cbg

    cbg Super Moderator

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    If anyone who took Saturday off for any reason would be forced to come in the next weekend, then you can be forced to come in the next weekend EVEN IF the reason you were off was under FMLA. They are not required to excuse you from other requirements that employees who took non-FMLA time off are subject to. You are supposed to be treated exactly the same as other employees, and if they're requiring ALL employees who took Saturday off to come in the next weekend, they would be treating you differently if they excused you just because your time was FMLA.

    By which, they would be violating the law by NOT requiring you to come in.
     
  8. theretoo

    theretoo New Member

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    Disagreed....talk to an employment law atty. Most will give a free consultation. I find that most HR folks DO NOT know how to correctly administer FMLA. Requiring a worker who uses FMLA to make up time could fall into disability discrimination for lack of accomodation for a disability. An employer has to allow time off, that includes protected FMLA leave. They cannot require that the time be made up. That is in a sense "punishing" you for being "ill" the days you used your protected time.
    HR tends to be very confused about these issues, talk to an employment law atty.
     
  9. cbg

    cbg Super Moderator

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    There is a very definite difference between "forcing someone to make up FMLA time" and requiring ALL employees who miss a particular day, for any reason, to work the following weekend.

    Why don't you show us where in the FMLA statute it says that an employee who misses a day for FMLA reasons cannot be required to make up that time even if everyone else who misses that day has to?

    Not to mention how it happens that you know more about how to administrate FMLA than those who do it on a regular basis. I agree that SOME people who have been thrown into HR from other areas need help with interpretation, but to suggest that all HR people are incapable of the interpretation of something that they do regularly is hardly accurate.
     
    Last edited: Dec 14, 2009
    Duckman1952 likes this.
  10. theretoo

    theretoo New Member

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    What makes me an "expert" at this point over those who have been doing this so long for a living is that I currently have lawsuit in place against my former employer for FMLA and disability violations. The suit includes my former HR director, who also wants to be a consultant, however has not yet figured out the new FMLA and disability laws. He was incapable of understanding the "old FMLA" much less the new laws that came into place Jan. '09. He thinks he knows it all, too. However, had he checked with corporate legal or the state or the US DOL, he might have learned something.

    That being said, this exact issue came up in my case before they decided to threaten me with my job for using FMLA that was approved by a third party administrator and to continually harrass me about using FMLA at all. Long story, however, when this same situation came up in my case, our corporate legal dept determined that it would violate FMLA to require an employee to make the time up. In my state, denial/retaliation/interferance/restraining an employee or taking negative employment action for use of said protected time does also fall into the failing to accomodate and failing to engage in the interactive process for accomodation of a disability. If you mess with FMLA, than you are likely to get into hot water with EEOC and or DFEH in CA, for possible disablilty discrimination.

    Remember, in CA, just being diagnosed with a medical condition that can make "life difficult" when it is in it's active form, is a disability. Federal EEOC also recognizes that a chronic health condition, in it's active form, will most likely be considered a disability.
    My expertise comes from living the life right now and just beginning litigation in my case after many months of a state investigation into my employer's employment practices.


    http://www.fordharrison.com/shownews.aspx?Show=4843
     
    Last edited: Dec 15, 2009
  11. mightymoose

    mightymoose Moderator

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    That is different.
    In the scenario given, the employee received the time off and was not treated any different than other employees following the requested weekend. As it was presented here, it does not appear that the employee was still on FMLA when scheduled to work the following weekend.
     
  12. theretoo

    theretoo New Member

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    The OP's question is whether they can be "forced" to make up time taken as FMLA, the simple answer is "NO". The employee was not able to work their regularly scheduled weekend due to FMLA so instead of waiting for the employee's next regularly scheduled weekend shift, the employer changed the schedule to require that the employee come in on a weekend that was not their regularly scheduled weekend due to the use of the FMLA time off. No, they cannot do that.
     
  13. mightymoose

    mightymoose Moderator

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    Right... I am on board with that... but it seems obvious that the OP was not "forced" to do anything. His schedule was treated the same as everyone else and he was given his time off that he requested. If he wanted the following weekend off for FMLA as well then he would have requested it. The employee was not treated differently by being scheduled to come in the next weekend... he admitted that is standard practice with that employer.
     
  14. cbg

    cbg Super Moderator

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    I see. So that makes you more of an expert than all HR personnel, regardless of where they are, who they work for and how much experience they have.

    Interesting to know.

    Given that the DOL has told me specifically that an employee who has taken FMLA is still subject to all the same requirements as an employee who has not taken FMLA, I stand by my answer.
     
  15. theretoo

    theretoo New Member

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    An employer cannot take any negative employment action against an employee due to their use of FMLA. Changing an employee's schedule from what was his/her previous schedule only due to the fact that they used FMLA on their regularly scheduled weekend is a change in terms and conditions of their employment due to their use of FMLA.

    CBG, you have the right to stand by your answer. It is your employer you put at risk for litigation.

    Many employers are very confused on "consitency" among it's employees. CBG's comment seems to run along those lines. You want to treat the employee using FMLA just like any other employee or hold them to the same standard as an employee who does not use FMLA, which in and or itself, again, takes negative employment action against the employee due to their use of FMLA.

    I am sure that you have had employees whine and cry that it is not "fair" for an employee who uses FMLA not to have to put the same hours in, etc. That is where the dilemma comes in.

    FMLA cannot be used an employee for attendance purposes, it cannot be used against an employee to give that employee a smaller raise or lower evaluation due to their use of FMLA. My former employer tried all those tricks, too, because they some how think it is not fair to other employees. However, in acting with that mind set, the employer is directly interfering with the employee's RIGHT to use FMLA and not be retaliated against or have any negative employment action taken against them due to their use of FMLA (and in CA, CFRA). In doing so, you particularly risk crossing the line into disability discrimintation.

    If the employee was scheduled to work the 1st and third weekends every month, on a regular basis, and this is the employee's regular schedule, and say has been on this schedule for 6 mos. or a year or whatever, an employer cannot now require that the employee work 1st and 4th weekend of the month due to their use of FMLA on the 3rd weekend of the month.
     
    Last edited: Dec 15, 2009
  16. mlane58

    mlane58 New Member

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    You seriously need to check your facts before you spew incorrect information. There have been regulatory changes to FMLA that take into account attendance, bonuses, pay increases and safety awards. The new regulations provide that if a bonus or other payment is predicated upon the hours of work or perfect attendance, the employer can deny or prorate the bonus based upon somebody’s FMLA leave so long as you're consistent across the board and the same goes for attendance issues as well. Before you start bashing and telling HR Professionals they are wrong (who by the way have been dealing with FMLA since it was enacted), get your facts straight. And as a matter of fact, I just got off the phone with a DOL investigator on another issue and happen to ask the question the OP put forth. The investigator stated that yes the employer can require the employer to work another weekend day provided that they do the same for other employees taking a non FMLA leave or day off that they were supposed to work.
     
  17. theretoo

    theretoo New Member

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    http://www.businessknowhow.com/manage/fmla_changes-2008.htm


    http://www.businessmanagementdaily....enteeism-without-breaking-the-law/Page1.html#


    The new FMLA states that in regards to "perfect attendance" awards, yes, however, when it comes to, as in my case, being written up corrective action for use of approved FMLA time in regards to "attendance" and being threatened with one's job due to "attendance" or "schedule" because of the use of approved FMLA, it cannot be done. I don't beleive that the OP is claiming a perfect attendance award, and if the medical condition is a disability, as it is in my case, then no, it cannot be done.

    There is now a much closer tie between FMLA and ADA and if the reason for the leave qualifies as a disability, then no.
     
    Last edited: Dec 16, 2009
  18. cbg

    cbg Super Moderator

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    And if EVERY EMPLOYEE, regardless of reason, who misses a particular day is required to work the following week, then an employee who missed that day due to FMLA is not exempt from working the following week. The employee who missed due to FMLA cannot be SINGLED OUT to work the following week if other employees who missed do not have to, but FMLA does not exempt them from a policy that all other employees have to follow. That is NOT "taking negative action against them because they used FMLA"; that is requiring them to follow the same policies as all other employees. Which is legal.

    This is per the DOL. If you think you understand the administration of FMLA better than the DOL, then, as I already asked you, show us where the statute says that employees who take FMLA are exempt from following the same requirements that other employees are also subject to.

    In other words, put your money where your mouth is.
     
  19. theretoo

    theretoo New Member

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    Last edited: Dec 16, 2009
  20. mightymoose

    mightymoose Moderator

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    Theretoo.... it seems the personal experiences that you are relying on are entirely different from the situation presented here. While what you are saying is very much correct, it seems that you are not applying it correctly to the situation.

    In this case, the employer's actions were perfectly normal and legal. No special burden was placed on the employee as a result of taking leave. He would have had to work the following weekend if he had missed work for any other reason. There was no special treatment and no special obligation.
     

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