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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 6809
Experience:  Significant experience in all areas of employment law.
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I am a health care executive and was on medical LOA for 2 months

Resolved Question:

I am a health care executive and was on medical LOA for 2 months for a serious medical condition. On my return I was informed I was being removed from my role. I was given a performance improvement plan(PIP) which noted vague and unsubstantiated performance deficits, e.g., "difficult to work with" - no specifics or examples of the allegations have been provided within the last 2.5 weeks. The organization has a progressive discipline policy which they did not follow, e.g., no verbal discussion of the "issues" prior to the PIP. In addition my performance review was canceled which meant that even though I achieved 3 of 4 annual objectives I will also forfeit $10-15,000 in incentive pay.

HRs position is that they have removed me from my role and confined me to conducting 2 projects over the next 2 months based on my limited availability (working PT 3 days per week based on medical certificate due to expire Sept. 14th) and that they have the right to do this based on my limited availability. On the other hand I was informed at the first meeting with my supervisor that the removal from the Exec. director role was based on the seriousness of the performance issues across the organization which required immediate action and allowed them to skip steps in the progressive discipline process.

I am to retain my title and will be paid at the same salary with the intent that if I demonstrate improvement in communication and team work (no measurable evaluation criteria provided) I may be fully reinstated in my role. A consultant was hired to cover the service line during my LOA but I am informed I will now be a "member" of the team and report to this consultant for the 2 month duration of the project.

I am not permitted to speak to any member of my direct reports or have any contact with anyone in the organization I would normally interact with in my executive director role. The consultant is acting as the interim executive director and I am 100% excluded from my former role. This is an extremely stressful situation which is impacting my health.

What are my rights in this situation?

Alison
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 1 year ago.
Hello and thank you for entrusting me to assist you. My goal is to answer your question completely and thoroughly and to provide excellent service.

I am very sorry to hear that you have come back from your leave of absence to be confronted with these issues.

Can you please tell me whether your leave was FMLA protected? Does the health condition for which you have missed work qualify as a disability under the ADA, and have you requested reasonable accommodations? (If you don't know the answers to these questions, that's okay)

I very much look forward to assisting you regarding this matter.
Customer: replied 1 year ago.

My LOA was FMLA protected (2 incidences) and I have now exhausted my 12 weeks protected leave. My medical condition is not a disability.


 


 


I am an exempt employee.

Expert:  Patrick, Esq. replied 1 year ago.
Alison,

Thank you very much for your reply.

Where an eligible employee takes FMLA leave, he or she has the right to return to work in his or her own, or to a substantially equivalent position. (29 CFR § 825.215)

The law is clear that merely because a position is at the same pay level as the returning employee's previous position does not in itself make the position "equivalent."

For example, in Foraker v. Apollo Group, Inc. 427 F.Supp.2d 936 (2006), the court held that where an employee returning from FMLA leave was offered a position at the same salary, benefits, and job classification as the employee held prior to taking FMLA leave, he was not returned to an "equivalent position" because the position offered did not also have the same level of responsibility, authority, status, and privileges as the position the employee held prior to taking leave. You can read the Foraker case here: http://www.leagle.com/xmlResult.aspx?page=2&xmldoc=20061363427FSupp2d936_11293.xml&docbase=CSLWAR2-1986-2006&SizeDisp=7

The courts closely scrutinize those cases in which an employee takes FMLA leave and then, upon their return, faces any sort of adverse employment action. The burden typically falls on the employer to demonstrate that whatever adverse action they have taken does not relate to the employee's FMLA leave.

Adverse action not relating to the FMLA absence is entirely legal, but where the cited justification for the adverse action is vague, as you have indicated is the case, it will be hard for the employer to make a case that your demotion (and potential termination) are not retaliatory in nature.

Unless your employer has a solid, well-documented basis for why it is taking this employment action against you, an individual in your circumstance may very well have a claim for retaliation pursuant to 29 CFR § 825.215, as cited above.

For attorney referrals, visit this link: http://apps.americanbar.org/legalservices/lris/directory/main.cfm?id=CA or visit http://www.martindale.com I particularly like Martin Dale because the site allows you to search attorneys by practice area and also provides attorney ratings.

When you contact the attorneys, ask if they offer free consultations. Most should, and this way you can get at least some feel for the attorney's expertise and enthusiasm for your particular case before you commit. Also, you will probably want an attorney who is willing to take your case on a contingency fee basis--this means that you won't have to pay for their services until you win, and if you don't win, you won't have to pay them any attorney fee.

Again, I am terribly sorry to hear about your health problems and the difficulties you are now facing at work. I sincerely XXXXX XXXXX this information helps you and I wish you the best.

If you do not have any further concerns, I would be very grateful if you would give my answer a positive rating and click submit, as this is the only way I will receive credit for assisting you. If you have any additional concerns that you would like me to address, please feel free to let me know by hitting the REPLY or CONTINUE CONVERSATION button and I will be more than happy to continue assisting you.

Finally, please bear in mind that none of the above constitutes legal advice nor is any attorney client relationship created between us.

Thank you and very kindest regards.
Customer: replied 1 year ago.

The situation is entirely unclear to me as I am informed that I have NOT been demoted and will retain my title as exec. director and pay rate but have been removed from my role and assigned to 2 projects for evalutation. Based on my interaction with the 8-10 people I would interact with during the project my performance improvement will be assessed (how and by whom has not be described).


 


I have argued that if the concern re my performance in the ED role is organization-wide as they claim I would be better off to retain my role and be evaluated on improvement in the ED role and not as a project manager. I believe the work entailed in the two projects are critical for the service line and that they intend to have me compete the work and then decide that my performance has not improved and fire me regardless of my performance.


 


What about "cruel and unusual" punishment (or whatever the legal term is) - is that an additional area to be considered?


 


The conflicting reason for their action, i.e., based on "availability' i.e., PT status versus based on incompetency is not clear. The written performance plan cites the latter and verbally they cite the former.


 


Is there justification for skipping the verbal step in the progressive disciplinary process and canceling my performance appraisal?


 


 

Expert:  Patrick, Esq. replied 1 year ago.
All of these concerns you raise are entirely legitimate. While "cruel and unusual punishment" is not the term generally used, victims of retaliation stemming from FMLA leave can bring claims for emotional distress, particualrly if they can provide evidence that the stress has manifested into physical symptoms, or that they were forced to go into therapy.

As noted above, "retaliation" from FMLA leave take take forms other than outright demotions and firings. The case I cited above establishes very clearly that an employer can retain their title and pay, as you have, but still be faced with "adverse" employment action if their responsibility, authority, status, and/or privileges are not the same as they were prior to taking leave. I believe this applies to your situation.

All the things you mention about conflicting reasons for the "discipline" against you tend to indicate that your employer is not being forthcoming about the true motivations for taking this action against you. While cases such as these are not necessarily easy to win, it would seem that an individual in your circumstance would have a decent argument that the treatment you are experiencing violates your FMLA right to return to the same or an equivalent position.

Again, I sincerely XXXXX XXXXX this information helps you and I wish you the best. If I have answered your question, I would be very grateful for a positive rating of my service so that I may receive credit for assisting you.

Kindest regards.
Customer: replied 1 year ago.

I was informed by HR that I my position was protected by FMLA/CFRA law if I RTW by 9/6/12. I returned on August 15, 2012 PT - 3 days per week re my doctors certificate. Does this meet the FMLA requirements if RTW is PT versus full time?


 


The notice of rights and obligations under FMLA/CFRA #9 state " if you are a "key" employee your right to reinstatement may be denied. The following conditions must apply for denial 1) you are a salaried employee who is the highest paid 10% of employees (possibly) 2) the refusal is necessary to prevent substantial and grievous economic injury to hospital operations (debatable) 3) you are provided with proper notification.


 


Do any of the above apply in my case given the organizations action?

Expert:  Patrick, Esq. replied 1 year ago.
"I was informed by HR that I my position was protected by FMLA/CFRA law if I RTW by 9/6/12. I returned on August 15, 2012 PT - 3 days per week re my doctors certificate. Does this meet the FMLA requirements if RTW is PT versus full time?"

The adverse employment action you are now experiencing occurred immediately following your return to work from FMLA protected leave. As long as you are within your protected 12 week period, the fact that you are working part time instead of fully absent should not make a difference.

"The notice of rights and obligations under FMLA/CFRA #9 state " if you are a "key" employee your right to reinstatement may be denied. The following conditions must apply for denial 1) you are a salaried employee who is the highest paid 10% of employees (possibly) 2) the refusal is necessary to prevent substantial and grievous economic injury to hospital operations (debatable) 3) you are provided with proper notification."

Application of this exception would really depend on the particular facts of your situation, which I cannot fully know through this limited internet forum. However, if you were not provided with notification that this exception applies to you, then your employer would not typically be able to invoke it.

Again, I sincerely XXXXX XXXXX this information helps you. Please kindly remember to rate my service so that I may receive credit for my answers here today.

Kind thanks.
Customer: replied 1 year ago.

Last question - would you advise me to meet with the CEO to discuss the situation (my VP will not confirm that she is aware of the action against me) at this stage or would it be in my interest to meet first with an attorney?

Expert:  Patrick, Esq. replied 1 year ago.
Thanks again for your reply. The additional questions are no bother whatsoever.

Unfortunately here on Just Answer we cannot technically "advise" customers to do anything, as that might be construed as providing legal advice, the terms of service prohibit. We can only provide customers with information about the law as it may apply to their situation.

The above noted, meeting with the CEO would be a judgment call and really depends on the personalities involved. It would be hard to bring something like this up without it sounding quite accusatory, and that would be likely to ruffle feathers for a lot of people. Generally speaking, it is best to leave the communication about this sort of issue to your attorney. Of course, as noted above, I cannot technically advise you on this issue. I hope you can understand.

All the best to you moving forward.
Patrick, Esq., Lawyer
Satisfied Customers: 6809
Experience: Significant experience in all areas of employment law.
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