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LawTalk
LawTalk, Attorney
Category: California Employment Law
Satisfied Customers: 27889
Experience:  I have 30 years of experience in the practice of law, including employment law and discrimination law.
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I have one more question for Doug. Would a reduction in force

Customer Question

I have one more question for Doug. Would a reduction in force fall under the same category for the FMLA Act. Because California was rearranged and her position was eliminated could we do a reduction in force and lay her off instead of putting her in another department? or that would fall under the category of the Protection Act for FMLA?
Submitted: 11 months ago.
Category: California Employment Law
Expert:  LawTalk replied 11 months ago.

Good afternoon Valerie,

Tell me, how many employees did your company lay off in the CA office where this employee worked at the time that there was a consolidation?

Are you saying that she would have been laid off anyway---despite her seniority and anything else about her record?

When did the consolidation occur and was it in direct response to her taking the FMLA leave and not being available? Please be utterly frank, as any equivocation will result in an answer that won't necessarily be helpful.

Doug

Customer: replied 11 months ago.

Thank you Doug. I understand completely what you are talking about.
I really appreciate your time.


 


Her manager said that before she went on FMLA she missed deadlines for projects so they decided to eliminate that position, but I have no write ups to backup the statement. I do understand that FMLA protects your job for the three months.


 


Thank you again for your time.


 

Expert:  LawTalk replied 11 months ago.

Hi Valerie,

If no other people were laid off, and essentially her position was just split up as an expedient convenience for the company, it sounds as though, but for the FMLA leave she would not have had her position disappear, and there is not enough to show that she was scheduled for termination---especially with no write-ups.

The lack of anything to back up the rational basis for ending this employee's position---other than the FMLA leave---raises some real red flags if your company demotes her or places her in a non-comparable position---so you probably want to avoid that.

You may reply back to me using the Reply link and I will be happy to continue to assist you until I am able to address your concerns, to your satisfaction.

Please remember to rate my service to you when our communication is completed.

I wish you the best in 2013,

Doug

LawTalk, Attorney
Satisfied Customers: 27889
Experience: I have 30 years of experience in the practice of law, including employment law and discrimination law.
LawTalk and 2 other California Employment Law Specialists are ready to help you
Expert:  LawTalk replied 11 months ago.

Thank you once again for your positive rating of my service, Valerie. It is always my pleasure to assist you and I hope than you will continue to ask for me on JustAnswer as future needs arise.

Please feel free to bookmark the following link so you can request me to answer any future legal questions you may have:
http://www.justanswer.com/law/expert-lawtalk/

Thanks again.

Doug

Customer: replied 11 months ago.


Good Morning Doug: I have one more question, The FMLA Act covers companies with 50 or more employees. The division in Cal has 12 employees on their site, but we add them to the count of our employees,


located in Cal and we are located in Utah does FMLA cover the 12 or will they be covered because they are our employees here in Utah. Our count altogether is 143. That includes two employees in Texas.


 


Thank you for your help.


 

Expert:  LawTalk replied 11 months ago.

Hi Valerie,

Why you feel the need to add the employees in CA to your Utah group is perplexing, but it is not required under the law.

To be eligible for leave under the FMLA, an employee must be either a full-time or part-time employee, have more than 12 months (52 weeks) of service with the employer, have worked at least 1,250 hours in the 12-month period (24 hours per week) before the date the leave begins, and work at a location in which the employer has at least 50 employees within 75 miles radius of the employee's work site.

However, as your company has self-created a policy of granting the CA employees coverage under the FMLA, you risk being held to that FMLA standard if you are sued.

You might consider implementing a policy change that is in writing and placed in the employee handbook used by the CA employees if you want to reverse this voluntary policy you appear to have implemented.

Doug

LawTalk, Attorney
Satisfied Customers: 27889
Experience: I have 30 years of experience in the practice of law, including employment law and discrimination law.
LawTalk and 2 other California Employment Law Specialists are ready to help you
Customer: replied 11 months ago.

Thank you that is what I thought.


You are so nice to work with. I really appreciate your expertise.


 


Valerie

Customer: replied 9 months ago.

The California employee is used up there FMLA and has used up their vacation, but is due to return tomorrow according to the paperwork.


Do we have to wait now to she if she comes back tomorrow or can we let her go. Her FMLA started on July 12th, which takes her to October 12th and then her 3 weeks vacation ended on November 1st. Do we need to wait to see if she comes back or can we let her go?

Expert:  LawTalk replied 9 months ago.

Good morning,

I apologize for the delay, but I have been on vacation and recovering from a medical procedure.

I think that there is some confusion as regards FMLA time.

First of all, under the FMLA regulations, if the person out on leave has vacation time, you may force the employee to use that time (and any sick leave accrued as well) from the very beginning of, and concurrently with, the FMLA leave, and pay them the vacation/sick leave they have coming. They don’t get to use FMLA and sick leave/vacation/PTO separately to make the time they are out longer.

Secondly, FMLA is 12 weeks, and not 3 months. You must count 84 days from the first day of FMLA leave to find the return date. In your case, if the first day of FMLA leave was July 12, 2013, then the FMLA leave ended on October 3, 2013, and she was due back on Friday, October 4, 2013. Presuming that you have paid her for her vacation/sick leave/PTO, and if she did not return on or before October 4, 2013, then you could have terminated her at any time thereafter.

You may reply back to me using the Reply link and I will be happy to continue to assist you until I am able to address your concerns, to your satisfaction.

Please remember to rate my service to you when our communication is completed.

I wish you the best in 2013,

Doug


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