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Please do not be so disheartened, this is why the safeguards were enacted along with the Family and Medical Leave Act ("FMLA"). An employer who lays off or terminates an employee who has applied to take unpaid medical leave under FMLA, or terminates the employee while they are on leave under FMLA will be subject to monetary penalties and must reinstate the employee to their position. Therefore, do not be afraid or intimidated, if you believe that your employer laying you off was FMLA related, you should file a Complaint with the US Department of Labor, Wage and Hour Division. If they find that the lay off was FMLA -motivated, you will be reinstated to your position and your employer will have to pay you monetary damages besides the penalty and he cannot retaliate against you with any adverse action because he would be subject to further penalties, __________________________________________________________________
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I understand the situation you explained..."An employer who lays off or terminates an employee who has applied to take unpaid medical leave under FMLA, or terminates the employee while they are on leave under FMLA will be subject to monetary penalties and must reinstate the employee to their position"...however, I didn't finish filing for the FMLA...I was in the middle of consulting with my H.R. Department regarding the whole issue, and right before I was going to actually file for it, is when they laid me off due to a "reduction of force". This "reduction of force" was verbally enunciated to me, as to make a point...then to find out in my research, this is actually one loophole an employer may use in order to facilitate a termination. My question is if I didn't file, but I've received the papers and forms to file, but was laid off before I could finally turn them in and file for them, do I have any grounds to stand on??
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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