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Marsha411JD
Marsha411JD, Lawyer
Category: Employment Law
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Experience:  Licensed Attorney with 28 yrs. exp in Employment Law
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after ten years of working for the same union company in NJ,

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after ten years of working for the same union company in NJ, I injured my back on the job and was on worker's compensation for 6 weeks. After being releases to return to work. I was giving minimal work by my employee and someone has taking my place as a foreman. What are my rights?
Submitted: 1 year ago.
Category: Employment Law
Expert:  Marsha411JD replied 1 year ago.
Hello,

Thank you for the information and your question. Can you tell me if your workplace has at least 50 employees and, if so, whether your employer provided you with FMLA certification paperwork for your absence? Also, did your doctor release you to full duty with no restrictions and if not, did you ask for a reasonable accommodation under the ADA for your restrictions. What does your union rep say about this situation?
Customer: replied 1 year ago.

I do not believe he has 50 employees, not sure I was returned from workmen's compensation with no restrictions. I also spoke with my union business agent who told me to my speak with my employer one on one. I did that as well. He says there is nothing wrong. However I still have no work and someone is working in my capacity as a Drywall Finisher Foreman. I have been unemployed for about more than 6 months.

Expert:  Marsha411JD replied 1 year ago.
Hello again David and thank you for the additional information. If your employer had at least 50 employees when you went out on WC, then they had a duty to provide you with FMLA and NJFLA certificatoin paperwork for your abscence due to your injuries. The reason why that is important is that under those laws, you would have had job protection for up to 12 weeks in a 12 month period for a serious health condition, which this would have been. Upon returning an employer is required to reinstate the employee in their same job or one that is substantially identical in all the important ways (pay, work duties, title, etc.). The only exceptions are if there is a lay off or reorganization that would have taken place whether the employee was there or not and the employee's position would have been eliminated. That is not the case according to your description. Therefore, I would strongly urge you to sit down with a local employment/labor law attorney to discuss filing suit to get your job back and for back wages.

If though your employer didn't actually have 50 employees, then those laws do not apply and if he had a neutral attendance policy that he enforces, and you were out beyond that length of time, then he would technically not have to give you your job back. However, he cannot target you for lay off or termination simply as retaliation for filing a WC claim. So, again, I would encourage you to speak to an employment law attorney about the facts of your case.

It is likely that one or both of the issues I mentioned here might operate to get you your specific position back, or at least back wages and front pay as well.

Please let me know if you have any related follow up questions for me. I would be glad to assist you further if I can.
Marsha411JD, Lawyer
Category: Employment Law
Satisfied Customers: 17195
Experience: Licensed Attorney with 28 yrs. exp in Employment Law
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