What are my rights?

[placebo]

On 1/25/2010 I woke up with abdominal pain and vomiting blood and I called in sick to work. I immediately consulted my physician and an EGD was scheduled for the following week. Meahwhile, I was having extreme abdominal pain, nausea, etc. and proceeded to call in sick everyday and informed my employer of the scheduled surgery the following week.

My employer (HR manager) explained to me that this medical leave qualified under FMLA and sent me a form to fill out requesting the time off. NO certification was requested at that time. At the conclusion of the 2 weeks leave (2/5/2010), I had a week's vacation scheduled that I still planned on taking in order to heal, if needed.

During my vacation, I had another procedure which resulted in a referral to a surgeon. On 2/11/2010, I was still not able to work due to my symptoms and requested another leave starting on 2/15 in order to manage symptoms and follow up with my surgeon. At that time I was told I was being sent a new FMLA request form along with a short-term disability form. It was also mentioned that I would need certification from my doctor. At that time it was not clear to me what the certification was for nor did I receive a certification form. I did send in the doctor excuses that I had accumulated during the first leave of 1/25-2/5, but did not have slips for 4 of those days.

When I spoke to my HR manager over the phone on 2/12/2010, the certification was discussed, but looking back I misunderstood what was needed. I thought certification was needed if I decided to apply for short-term disability and was still was not aware of any certification needed for FMLA specifically. On 2/16 my HR manager contacted me telling me I needed to give them certification for the 4 days I had missed that I did not turn in doctor slips for during the first leave. When I asked her to explain, I was told that I had been told that over the phone the last time we spoke. I explained that I did not realize I needed this and would get them the information right away. I then followed up by sending an e-mail to my HR manager asking that future requests concerning time-sensitive documents be e-mailed or in written form so that I have some type of written record to refer to.

A minute or so later I received a reply to my e-mail that was clearly sent to me by mistake, but rather was intended to be forwarded to another employee also in HR at one of the company's other branches. It read: "(insert person's name), read this crap!!!" I immediately responded and said i didn't appreciate that. My HR manager immediately called and apologized, e-mailed and apologized, etc. I was extremely upset, hurt and humiliated. I saved all the e-mails. Unfortunately I do not trust anyone at my company and since she's the HR manager, By the way, I am an outside sales rep and only report to the office on a monthly basis to attend sales meetings.

My questions are:

Did my HR manager have a right to share this info with another employee without my knowledge or consent?

Is this in any way interfering with FMLA rights?

Am I not entitled by law to have certification requests in writing with time limits clearly stated?

Can this be considered a hostile work environment situation

 

[mlane58]

Did my HR manager have a right to share this info with another employee without my knowledge or consent?

It isn't protected information. It was very poor judgement on their part, but not illegal.

Is this in any way interfering with FMLA rights?

No. Just how did they interfere?

Am I not entitled by law to have certification requests in writing with time limits clearly stated?

The form they sent propbably was the certification to have completed.

Can this be considered a hostile work environment situation

No even close.

 

[placebo]

I do not know if they interfered; that is the reason for the question.

The form they sent was not the certification. It was the FMLA leave request form. I was told I was not sent the certification form because they (supposedly) instructed me to get doctor slips instead. Regardless, moving forward, are they or are they not required to furnish me with written documentation requesting certification? Weren't they supposed to request certification within 5 days of the start of the leave? I've never received any follow up approval confirmation or otherwise. Was I supposed to?

 

[army judge]

You have to trust them, or you'll be unemployed. You must follow your company's procedures. Failure to do so will only have detrimental consequences for you. Now isn't the time to get into shouting matches. You are at a distinct disadvantage. Get over your medical issues, keep your income flowing, retain your health care coverage, and stay employed. You can work on the small crap when you're better. You might speak to your manager, but stay focused. Otherwise, you won't know what just hit you!


Sent from my iPhone using Tapatalk

 

[theretoo]

Your employer may interfere with your request for FMLA by not giving you all of the proper certification to begin with and by making it as difficult as possible for the employee to properly provide certification to the company by not providing it.

If your company did not do their part, it is difficult for you to do your part. In general, HR would prefer that no on ever use FMLA, so in intefering with not providing you with the paperwork, is an issue. It is your emplyer's responsibility to desigate your leave as FMLA. If they did not desigate, then they are confused. If they did not designate the leave as FMLA in writing, then they can designate the leave as a leave of absence under disability accomodation.

All of that being said, with all of the new laws that are in place, and very little training being done on the subject to HR folks from corporate, there is a lot of confusion. I suspect that your HR folks are very confused, need training on the FMLA and disability laws and are afraid to ask for assistance or training on the subject from corporate, so you get the raw end of the deal since they are confused. Welcome to the club....

Talk to an employment law atty in your area....

 

[cbg]

Theretoo, what formal training have you had on FMLA?

 

[theretoo]

From my attorney.....

My lawsuit contains the following -

Interferance with medical leave

Retaliation for seeking medical leave

Disability discrimination

Failure to provide reasonable accomodation

Retaliation in violation of state law

Failure to properly investigate, remedy and prevent discrimination and retaliation

Whistleblower retaliation for reporting illegal activites to a state agency

Wrongful Constructive Discharge in violation of public policy

Negligent supervision

All can be proven, in writing, from my mangement chain to HR reps...keep everything your employer gives you, you never know when you might need it

Corrective action write ups specifically stating they are writing me up for using FMLA and writing me up for "attendance" issues for using FMLA....Funny, huh....that is how my employer and HR works. Being lazy like they are, they had my manager do the write ups so HR is out of it. Funny how in my state, individual managers cannot be held personally responsible, it is coprporates responsibility to be sure training is being done correctly..and who is supposed to train? HR.....Did ya' train your company on the new laws or are you as HR too lazy to do it? If you are a "senior" manager, I bet the latter......too lazy to train your staff on the changes because you yourself have not been trained, huh?

Really funny to watch everyone from HR to managers scramble running around screaming "I didn't do it!" because they are afraid of being "responsible".

Our state puts responsibility right where it belongs, corporate and training. While Hr and managers are running around like chickens with their heads cut off because "they didn't do it", it is corporate that takes the hit....

 

[army judge]

Lawsuits are easy to file.
Anyone can file a lawsuit against anyone else for anything.
Prevailing in those lawsuits, now that's an accomplishment.
Also, knowing when not to file a lawsuit, is an even greater skill.

 

[theretoo]

Disagreed, there are a lot of checks and balances in place to avoid frivilous lawsuits, and that includes filing with a complaint with a govermental agency before hand to assure that there is valid cause. Remember Enron and Sarbanes Oxley? If your state agency or EEOC dismisses the complaint, then you will know that there are no grounds to pursue a suit. Filing a complaint with a neutral agency will ensure your protection "when" they let you go and can validate your claims and or resolve them for you if you so choose to follow that path.

For those who question whether the acts of your employer are legal, questioning any possible protective class action against you, do not ask HR. They are not legal experts, and if your employer happens to be far to the right (old Repulbican men) who will die before admitting they could learn somthing or to "comply" with the laws of your state or of this country, you have protections.

First, file a complaint with your state and or federal agency (EEOC for federal or your state governing labor board). By doing so then notifying your employer that you have done so, will give you the added Whistleblower protection should they choose to "elimiante" your job for whatever their excuse is.
My former employer used attendance and email as their "primary" weapons against "problem" employees who refused to subscribe to their BS and chose to bring an issue to the forefront that they would prefer to keep swept under the rug.

To the OP's question whether it can be a hostile work enviornment claim....I asked my attorney the same question. You would need to discuss your specifics with your own attorney, however, I was told that in my case, FMLA/CFRA retaliation is the correct charge in regards to the harassment I endured and that hostile work enviornment is used primarily in sexual harassment or race related discimination. Your best avenue is to file a complaint with your state labor board and or/EEOC and discuss your specifics with a local employment law attorney who works only with EMPLOYEES.

 

[army judge]

OP, you have been given advice.
Some advice came from attorneys, and other advice emanated from concerned people.
Please, for your own sake, tread carefully.
Retaining your own paid counsel, is never a bad idea.
But, in order to protect YOUR rights, please follow to the letter, directions given to you by HR and corporate management.
Lawsuits are not resolved overnight.
Many people have gone broke and died, awaiting the resolution of their lawsuit.
Good luck and get well, soon!

 

[placebo]

I realize I need to do whatever it is they're asking me to do. I'm not naive enough to believe I can get away with anything else, but am also smart enough to protect myself from them throughout this process. That is why I asked my HR manager for requests to be in written format rather than over the phone; I was trying to protect myself. One would think the employer would be smart enough to have everything documented in writing as well. I want to avoid any situation where I lose out on a right or benefit I am entitled to because I misunderstood or misinterpreted something I was told over the phone and that the employer has no record of; then it just turns into a game of he said/she said.

I had gone to the DOL website and came across some info regarding both parties responsibilities under the law, and that is why I am questioning if they provided me with the proper documents that are required under the law. I have no doubt what they need from me in terms of compliance, but I do question the manner in which these documents were requested of me and how I was treated in the process.

I was just looking for some advice and clarification, not to bring a lawsuit against them.

Thank you for the advice.

 

[cbg]

So, Theretoo, you have no formal training in FMLA. (HINT: there is a difference between formal training and filing a lawsuit.)

Since every sitution is different and not all claims are going to relate to yours, you would be better off NOT telling other people that they need training (that you do not have) because you know the law better than they do.

BTW, I DO have formal training in both the ADA and FMLA.

 

[theretoo]

I am glad you have formal training in ADA and FMLA, whew, what a load off!

What year did you receive that training?

 

[theretoo]

Hi Placebo,
If you are just wanting to resolve the issue with your HR folks, I would simply take in a copy of what info you have and ask them to walk through the process with you so that you are all on the same page.