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FMLA Investigation

Discussion in 'Medical Leave & Disability' started by txls, Jul 14, 2016.

  1. txls

    txls Law Topic Starter Well-Known Member

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    Jurisdiction:
    Louisiana
    An update on my brother's case. (He was fired after having a stroke but he qualified for FMLA)
    He found out that what the agency will do is conduct an investigation and if they find that his rights were violated, they will issue him a right to sue letter. Part of his application asks him what he wants from the employer as a result if their findings are in his favor. So it so seems like maybe they will present his requests and perhaps they will settle without going to court. So here's the question.
    What should he ask for? He doesn't want his job back. FMLA if it had been granted would have been unpaid. He did have to go on COBRA so he lost the portion of insurance that they would have been paying. He was granted unemployment so he does have some income, but it barely pays the COBRA premium. They did cause a great deal of emotional stress and financial difficulties waiting for unemployment to come through, but how do you put a dollar figure on that? Then there is the difficulty of finding a job when you aren't 100% healthy.
     
  2. jayh991

    jayh991 Member

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    There are a few different ways to calculate. The simplest is to start with a reasonable number of years and adjust according to the situation. I always suggest being as transparent as possible for a two reasons. First, it will show the company that you are well prepared for the investigation. Second, if you wind up in a law suit in the future it shows the judge/jury you acted in good faith to settle this out of court. However you choose to come up with the figure ensure you detail how you did it.

    You need to determine how long your brother would have continued to work for the company given his medical situation. It is usually unreasonable to claim for the rest of his working life (depending on age). I suggest starting with two years and you can adjust according to your particular situation. Take his salary and multiple by two. (All figures are estimates/guesses)

    $50,000 x 2 = $100,000

    Subtract his FMLA time from the equation to account for unpaid time off.

    $100,000 - $11538 = $88462

    Subtract the difference between unemployment (only include unemployment up to the limit, ie 2 years, or his eligibility whatever comes first) and his salary.

    $88462 - $24000 = $64462

    Add the disparity between COBRA and employee contribution of his old health plan (if there is one)

    $66462 + $15000 = $79462

    You can add or subtract any other expenses or offset incomes that apply to your scenario. Include a statement that explains your reasoning for the starting number. "Based on xxx work history which include no disciplinary action it is reasonable to assume he would have continued to work in the xxx department at a satisfactory performance level for the next two years."
     
  3. txls

    txls Law Topic Starter Well-Known Member

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    Thank you. And yes he wants to be able to detail where he came up with his request, not just some random number pulled out of thin air.
     
  4. ElleMD

    ElleMD Well-Known Member

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    The right to sue letter is the consolation prize, not evidence that they found discrimination. The agency's job is to mediate these situations when there is a violation, and attempt to come to a realistic and mutually satisfactory resolution. Given the number of reports each year, as a practical matter they as an agency can only take on the most egregious and straight forward cases. The rest get right to sue letters, after which it is up to the aggrieved to pursue it on their own. Even then, few get to actual trial.

    Reinstatement is the "preferred" remedy, often with back pay awarded. Is there a reason, other than hurt feelings, reinstatement isn't an option? Sometimes, it is not as the relationship was so damaged by the way things transpired reinstatement is not feasible. If the only remedy sought or acceptable is money, the EEOC tends to view that unfavorably. Is he unable to perform his job permanently?
     
  5. txls

    txls Law Topic Starter Well-Known Member

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    The relationship is damaged. The manager tried to lie and tell the state that he quit so he wouldn't get unemployment, among other things. He was actually ready to go back to work two weeks after his stroke with the accommodation of a regular height chair and desk rather than working at a counter. If they didn't want to give him that for his current position, he was willing to take another position. He didn't even get the chance to discuss any of that. And he doesn't want a huge amount of money. He was thinking of maybe 6 months pay and the insurance premiums. He just really doesn't know what would be reasonable to ask for.
     

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