Thank you, XXXXX XXXXX your follow up question and the opportunity to explain further,
You actually do have a lot of ground to stand on. Consulting with the HR Department about any aspect of FMLA leave is really giving the employer advance notice of your intention to take leave under FMLA, so basically it is the same thing. And, the employer telling that employee that they will be part of a "lay off", or a "reduction in the workforce" is not looked upon by the US Department of Labor as "mere coincidence". They look at it as a threat by the employer to the employee that if he exercises his rights under FMLA, there will be "a price to pay" by the employee and that it has a "chilling effect" on the employee, preventing him from actually exercising his rights.
Although you might look at it as a "loophole" for the employer, the employer is very closely scrutinized by the US Department of Labor which will scrutinize the employer's overall operation, and will closely examine the notes the employer took, documenting the need to reduce his workforce. These notes cannot be over a period of one or two weeks. The Department of Labor will look further back several months and compare the overall operation of the employer at that time and compare the notes the employer took every step of the way.
If the Department of Labor sees that at any time, the employer's notes do not match the actual operation and that the employer's decision to reduce his workforce was a fairly quick decision, they will immediately know that something is not right. In addition, the Department of Labor must see a substantial reduction in the workforce because their idea of a "reduction in the workforce" is not merely laying off two or three employees. The Department of Labor must be convinced that the number of layoffs is substantial and that there is also a comparable substantial reduction in the employer's overall operations.
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