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Andrea, Esq.
Andrea, Esq., Lawyer
Category: Employment Law
Satisfied Customers: 11644
Experience:  25 yrs. of experience in employment law, real estate and business law, family law, criminal defense and immigration.
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This might be a little long. I am an EHS( Enviroment, Health

Customer Question

This might be a little long. I am an EHS( Enviroment, Health and Safety) manager for a large corporation, I have been their about 3 years, have always received good reviews and was the only one to receive a bonus last year (2012) $20K for the entire plant. The company was bought out in 2011, and since then most of the old employees have left for other jobs. I went through cancer treatment last year and did not take a sick day I used vacation when I needed off for doctors visits. This year I have had the cancer reoccur and I have been seeking treatment again, this has happened in the last month. In Feb 2013 I received my annual review and got great marks, three weeks ago had another review and again great marks. Last week I came to work and told my supervisor and a coworker that I would be needing some time off for medical treatments(usually I come in late or leave early) and my supervisor visibly "scoffed" and said under her breath "whatever". I did not think anything at the time but on Monday of this past week my supervisor called me into the office and counseled me and put me on probation till September and gave me an enormous amount of work to complete along with my regular duties and said that if it is not complete by September 16th I will be terminated! The amount of work is a full years worth of testing and compliance issues for 2014 that are not even due. Do I have a medical discrimination case or hostile work case or am I just at her mercy. Thanks Holly X.

Submitted: 1 year ago.
Category: Employment Law
Expert:  Andrea, Esq. replied 1 year ago.

Hi, Holly, My name is XXXXX XXXXX I will be assisting you. My goal is to provide you with Excellent Service, so if I have not Answered your question completely, please let me know and I will be glad to explain further. But I need a bit more information, if you do not mind,

 

 

1. Does your employer have more than 50 employees ?

 

 

2. If so, does your employer have notices in conspicuous places where they can be seen by employees regarding their rights under Federal law on the Family and Medical Leave Act ?

 

 

Thank you,

 

 

 

 

 

Customer: replied 1 year ago.
Yes we have over 50 employees and yes we have fmla signage
Also on another note they have let go everyone over 32, this year I am 52
Expert:  Andrea, Esq. replied 1 year ago.

Thank you for your reply,

 

The best way to secure your job and the only way to guarantee against termination (unless for cause) is to submit a request for leave under the Family and Medical Leave Act ("FMLA"). All employers who have 50 or more employees are subject to the rules of FMLA.

 

I am sincerely XXXXX XXXXX hear of the recurrence of your illness, but it is the perfect opportunity for you. Submit a request for leave under FMLA together with a letter from your treating physician. Your employer cannot deny your request. Furthermore, the employer must keep your position open for your return. If your employer is unable to keep your position open, then upon your return, he will have to place you in a comparable position, with comparable salary, comparable seniority, and everything else that went with your position. More importantly, your employer (In the form of your supervisor/Manager) cannot take any retaliatory action such as increasing your work load, or imposing overtime on you. Therefore, your supervisor's actions in immediately putting you on unwarranted probation, together with giving you a year's worth of work to complete within a very unrealistic short period of time will immediately work against the employer. My belief is that your supervisor might very well be terminated by her superiors because her actions unnecessarily subjected your employer to penalties and fines for FMLA violations.

 

You must, however, immediately report this retaliatory action, otherwise it will be considered "stale". There are two avenues which you may pursue. First, report the violation of your rights under FMLA to the US Department of Labor's District Office in your area. And, you can file a lawsuit against your employer under FMLA, Section 107. If you choose to file a lawsuit against your employer, in addition to other damages to which you would be entitled, you would also be awarded liquidated damages because your supervisor "intentionally" violated the FMLA rules.

 

If you also believe that you are being discriminated because of your age, you have a right to file a formal Complaint (a "Charge") with the Equal Employment Opportunity Commission ("EEOC"). They will investigate your employer and then issue to you a "Right to Sue" Letter.

 

_________________________________________________________________

 

Please be kind enough to rate Excellent Service" so that I receive credit for assisting you, it will not cost you anything additional to give me a positive rating, and that is the only way I can receive credit, Thank you for understanding,

 

Bonus and Positive Feedback on survey is very much appreciated,

 

ANDREA

 

 

 

Customer: replied 1 year ago.
Thanks, XXXXX XXXXX start the process. What kind of timeperiod do I have to turn in a note from the doctor.
Expert:  Andrea, Esq. replied 1 year ago.

Good morning, Thank you for your follow up question and the opportunity to explain further, My apologies for any delay, but I wanted to get all the links which you would need in both requesting FMLA leave as well as filing the Complaint against your employer,

 

Under FMLA, an eligible employee is entitled to take 12 weeks of unpaid leave. An "Eligible Employee" is one who has worked for the employer at least 1,250 hours within the precdeding 12 months.

 

There is generally a 30 day notice requirement to the employer, if it is foreseeable by the employee within which to submit your request with a letter or note from your treating physician, but it is a good idea if your physician's letter and your request for leave under FMLA be submitted together. And, in order to avoid giving your supervisor even the smallest reason to complain about you, you should first coordinate your treatment with your physician, have a date certain when treatment is to begin, and if you have work which must be completed in your absence, then give your employer, as much notice as possible. If your physician tells you that your treatment must commence immediately, then just give the employer as much advance notice as possible without jeopardizing your life or health any further. FMLA does not expect you to jeopardize your life in order to give the employer notice. This is something which is beyond your control and you must adhere to the schedule your treating physician has for you.

 

When you submit your request and your physician's letter, if your supervisor's order that you are on probation is still in force, together with the unreasonable amount of work the supervisor expects you to complete under threat of termination, this is clearly retaliatory action on the part of the employer through the supervisor. You should immediately file your Complaint of violations of your rights under FMLA with the US Department of Labor, Wage and Hour Division. Please click on the link below for a general overview of your rights and obligations,

 

http://www.dol.gov/whd/regs/compliance/whdfs28e.pdf

 

 

If your employer requires Certification of your health condition from your treating physician, then use the form provided by the US Department of Labor, Wage and Hour Division at the following link,

 

http://www.dol.gov/whd/forms/WH-380-E.pdf

 

 

Here is more information to assist you,

 

 

http://www.dol.gov/whd/fmla/index.htm

 

 

You did not state in which part of Texas you reside, therefore, I am providing you with all the District Offices of the US Department of Labor, Wage and Hour Division, so that you can select the District Office which is nearest to you for purposes of filing a formal Complaint of your employer's violation of your rights under FMLA,

 

Texas

 

Dallas District Office
US Dept. of Labor
Wage & Hour Division
The Offices @ Brookhollow
1701 E. Lamar Blvd., Suite 270, Box 22
Arlington, TXNNN-NN-NNNN/p>

Phone:
(817)(NNN) NNN-NNNNbr/> 1-866-4-USWAGE
(1-866-487-9243)

Curtis L. Poer
District Director

Houston District Office
US Dept. of Labor
Wage & Hour Division
XXXXX Suite 1164
Houston, TXNNN-NN-NNNN/p>

Phone:
(NNN) NNN-NNNNbr/> 1-866-4-USWAGE
(1-866-487-9243)

Robin Mallet
District Director

McAllen District Office
US Dept. of Labor
Wage & Hour Division
1101 E Hackberry Ave., Suite 100
McAllen, TX 78501

Phone:
(956)(NNN) NNN-NNNN
1-866-4-USWAGE
(1-866-487-9243)

Eden Ramirez
District Director

Corpus Christi Area Office
US Dept. of Labor
Wage & Hour Division
Wilson Plaza
606 W. Carancahua, Suite 705
Corpus Christi, Texas 78401

Phone:
(NNN) NNN-NNNNbr/> 1-866-4-USWAGE
(1-866-487-9243)

Vince Leija
Asst. District Director

San Antonio District Office
US Dept. of Labor
Wage & Hour Division
Northchase 1 Office Building
10127 Morocco, Suite 140
San Antonio, TX 78216

Phone:
(210)(NNN) NNN-NNNNbr/> 1-866-4-USWAGE
(1-866-487-9243)

Juan Coria
District Director

 

 

___________________________________________________________________

 

 

Please be kind enough to rate Excellent Service" so that I receive credit for assisting you, it will not cost you anything additional to give me a positive rating, and that is the only way I can receive credit, Thank you for understanding,

 

Bonus and Positive Feedback on survey is very much appreciated,

 

ANDREA

 

 

 

 

Andrea, Esq., Lawyer
Category: Employment Law
Satisfied Customers: 11644
Experience: 25 yrs. of experience in employment law, real estate and business law, family law, criminal defense and immigration.
Andrea, Esq. and 7 other Employment Law Specialists are ready to help you
Customer: replied 1 year ago.

Also they have let go everyone over 32. I am 51

Expert:  Andrea, Esq. replied 1 year ago.

If you believe that your employer is discriminating against you because of your age, and is giving you a difficult time because of your age, you can file a formal Complaint called a "Charge" with the Equal Employment Opportunity Commission ("EEOC"). The EEOC will investigate your employer and will issue to you a "Right to Sue" letter. Even if your employeer is discriminating against other employees based on their age, you can only file a formal Complaint on your own behalf, the other employees who are also subject to age discrimination by your employer must file their own formal Complaint with the EEOC. However, I do not believe that any of the employees between the ages of 32 and 40 will have a viable claim to file because the EEOC states that age discrimination is considered for employees who are 40 years of age or older.

 

Please keep in mind that you must file your formal Complaint within 180 days of the date of the discriminatory action by the employer, otherwise you would lose your right to file such Complaint with the EEOC.

 

_______________________________________________________________________

 

Please be kind enough to rate Excellent Service" so that I receive credit for assisting you, it will not cost you anything additional to give me a positive rating, and that is the only way I can receive credit, Thank you for understanding,

 

Bonus and Positive Feedback on survey is very much appreciated,

 

ANDREA

 

 

 

Andrea, Esq., Lawyer
Category: Employment Law
Satisfied Customers: 11644
Experience: 25 yrs. of experience in employment law, real estate and business law, family law, criminal defense and immigration.
Andrea, Esq. and 7 other Employment Law Specialists are ready to help you
Customer: replied 1 year ago.


Andrea, I have a follow up question, I have received my paper work for FMLA . Anheuser-Busch would not use the federal paper work they insist on their own. There is a fine line on one form that says "If during this time of this leave of absence I am placed on layoff, this leave of absence will end as of that date and any rights and privileges that I may have will depend upon the terms and conditions of my employment". Is that saying that I can be layed off or terminated anyway.


Thanks


Holly.

Expert:  Andrea, Esq. replied 1 year ago.

Hi, Holly, Please accept my apologies for any delay, but we are experiencing technical difficulties and I did not receive notification that you had a follow up question,

 

Thank you for the opportunity to assist you once again,

 

That is exactly what that statement means, it gives your employer the right to lay you off and if the lay off is indefinite, it could effectively amount to termination, while you are on FMLA leave. Your employer is acting in a very deceitful way by including that statement in an Application which the employee would be required to sign in order to get FMLA leave. And, the employer uses the term "Layoff", rather than outright "Terminate" to avoid being accused of violating FMLA rules, to allay the suspicions of any employee, and to leave himself a way out by arguing that the layoff was temporary. You are very astute, not only to have read it, but also to have become suspicious enough to ask me what the ramifications of signing that Application would have. And, because an employee is permitted to waive his rights under FMLA it would be very easy for the employer to lay off and effectively terminate an unsuspecting employee who signed that Application and took FMLA leave.

 

Politely tell your employer that you cannot, in good conscience, sign the Application with that language in it. Do not accept any verbal explanation offered by the employer, or any verbal promise that you will not be layed off. I looked up the official FMLA Application Form that you can fill out and submit to your employer which he must accept. Please click on the link below and it will take you to the FMLA Application Form.

 

http://www.opm.gov/forms/pdf_fill/opm71.pdf

 

Please let me know what your employer says, or if he has any objections to your using the FMLA Official Application Form. Please do not hesitate to let me know if you have any problems or have any other questions,

 

I wish you the very best of luck,

 

_________________________________________________________________________

 

 

Please be kind enough to rate Excellent Service" so that I receive credit for assisting you, it will not cost you anything additional to give me a positive rating, and that is the only way I can receive credit, Thank you for understanding,

 

Bonus and Positive Feedback on survey is very much appreciated,

 

ANDREA

 

 

Andrea, Esq., Lawyer
Category: Employment Law
Satisfied Customers: 11644
Experience: 25 yrs. of experience in employment law, real estate and business law, family law, criminal defense and immigration.
Andrea, Esq. and 7 other Employment Law Specialists are ready to help you
Customer: replied 1 year ago.

I should be able to turn in the FMLA paperwork today, had some doctor availability problems. I feel that when I ask my employer to use the federal paperwork that there will be a problem. Also under the terms of the probation, I will get a 2 week review over the status of the additional work that was assigned, this review will be with a higher up manager due to the fact that my problem supervisor is out on maternity leave. Should I inform my reviewer (General Manager) about the past conversation that I had with my supervisor about my existing health condition and my supervisors actions and reactions. Thanks Holly I am sure that I will need an attorney.

 

I have this meeting at 4:00, just wonder about your thoughts about bringing up the health issues with The GM.

Customer: replied 1 year ago.

Andrea,


i wanted to give an update and ask another question. I turned in the federal FMLA paperwork about 2 weeks ago. My doctors request was for " A 40 hour work week with schedule lunches and off for prescheduled doctors visits". I have a meeting either today or tomorrow with the General manager, head of human resources and my self, to "discuss" my FMLA paperwork. I did complete all of the required "extra" work that was asked of me during my probationary period. I do feel that today is the day that the terminate me because of the FMLA request. What are my rights and the law about any medical questions that they may ask.


Thanks


Holly

Expert:  Andrea, Esq. replied 1 year ago.

Hi, Holly, Welcome back!

 

I just saw your current question and never received any notification of your 7/29/2013 question; it appears that this notification issue is not that easy to resolve,, but I know that it is not my email that is the problem because I receive email from everywhere else.

 

I have a couple of questions for you,

 

1. Did the meeting you referred to in your 7/29/2013 post take place ?

 

2. If so, with whom and what were the results of that meeting ?

 

 

3. Did you have the meeting today with the GM and Human Resources ?

 

 

4. Is this the 2-week review you referred to ?

 

5. Is your doctor's request for a 40-hour week the FMLA request you are making ?

 

 

Thank you and I look forward to your reply,

 

 

ANDREA

 

 

 

 

Customer: replied 1 year ago.


1. Yes the meeting took place with the General Manager, and all of the requested work was completed before the September 16th deadline, he said " that does not matter, what a VPO" VPO is a new reference sorce that the Corporate office wants us to perform, we have had this material for one week at the time of the meeting. The GM said that I should have this book memorized by now, there is no way! It is a 200 pages document filled with charts and graphs to be used as a reference source. I told him that was impossible. By the way none of the other employees have even seen or heard of VPO to this date.


 


3. Did not have the meeting yet, but it is coming. Another higher up sent me an email asking if some things were done that eventually would help guide a new employee to take over my position, and I said yes and he was very surprised. He acted like that he had been told that I was not doing my job.


 


4. Yes the second 2 week review is 2 weeks late.


 


5. Yes, the FMLA paper work said " 40 hour work week with scheduled lunches and off time for scheduled doctors appointments, which I have one this afternoon.


 


I turned the FMLA paperwork in on August 9th, and they have not respond at all until Tuesday, August 19th, when the GM told me they needed to meet with me and discuss my FMLA paperwork.


 


I will say that, on August 7 or 8, we had a major hazardous material release due to equipment failure and I was the only one in the entire plant that could handle the notifications, containment and disposal(that is my job). That day the Regional Director was at our facility and I worked hand and hand with him and he complemented my handling of the situation to the General manager of our facility, who did not know how to handle the situation. On that day I stayed at work till 8:00pm to finish the containment.


Our rank structure is


Regional Director


General Manager


Supervisor EHS


Manager 1 EHS (myself)


 


I don't know if the meeting will take place today because I am leaving at 1:15 for a doctors appointment.


 


I am aware that they are late on the 5 days to notify me of acceptance or denial of FMLA. I just don't know what to do. I did not sign the company cover sheet that says I can be terminated at any time while on FMLA.


 


Holly


 

Expert:  Andrea, Esq. replied 1 year ago.

Hi, Holly, Thank you for your additional information,

 

In your previous post, you stated that your doctor filled out the FMLA request for leave as follows:

 

"My doctors request was for " A 40 hour work week with schedule lunches and off for prescheduled doctors visits".

 

 

I did more research to see to what extent FMLA covered the restrictions set by your doctor. The prescheduled doctor appointments are covered by FMLA. It is the 40-hour week restriction that concerned me. As I have said before an employee can take up to 12 weeks of unpaid leave when such leave relates to a medical condition of the employee or a close family member. The 12 weeks can be taken in one block or in several smaller blocks of time. FMLA also protects an employee when his condition does not allow him to work full time. For example, an employee who has undergone surgery and whose doctor restricts the employee to working say, four hours a day.

 

I could not find anything on point as to the 40-hour week and scheduled lunche breaks. So, if your employer gives you a hard time about this, the only argument that I can think of is to use the argument that this is merely an extension of the protection which FMLA gives an employee who is restricted to working only a few hours a day. Your doctor can prepare a statement for you to give to your employer that the treatments you will be receiving will be physically taxing and your energy level will be low and, therefore, working more than 40 hours a week would undermine the treatment that you are undergoing and would drain you of all energy. Your doctor can phrase this properly with the appropriate medical terminology.

 

I just do not want your employer to have anything that he can use against you. When you speak with your doctor, tell him about these concerns so that he can properly address them in his statement,

 

Please be kind enough to rate Excellent Service" so that I receive credit for assisting you, it will not cost you anything additional to give me a positive rating, and that is the only way I can receive credit, Thank you for understanding,

 

If you receive a Customer Satisfaction Survey from JustAnswer, Please rate a 10 as it gives me a greater opportunity to assist other customers on this website and is greatly appreciated,

 

Thank you for allowing me the opportunity to assist you,

 

ANDREA

 

 

 

Customer: replied 10 months ago.


Well it Happened as of today at 12:00 I was let go. The General Manager said that I gave 100% and that it was not my quality of work, because it was excellant, I just did not fit in. They offered me 3 months severance and 6 months of Insurance coverage if I dont file suit. As an update, I did complete the work that was requested and before the due date. I never had a review with anyone to inspect or verify that the work was done. My immediate supervisor returned today from maturnity leave and did not speak at all, she has been off for six weeks. When I filed the FMLA paperwork we had a meeting 10 days after I turned the paperwork in( the law is 5 days). In the meeting the GM said that he did not know about any of my medical history, and that he was not aware of the fact that I told my supervisor that I would be needing treatments and a reduced work schedule, and approved the FMLA paperwork.


My question is, considering the info and history that I have told you does this situation have a valid grounds for suit, or do I need to take the severance/insurance package.


On another note they also fired another employee last week, he had 20 years with the company and the situation was exactly the same.


1. work has been exceptional until new owners


2. Called him in and said his work was substandard.


3. Gave him a big assisgnment which he should not be able to complete.


4. he completed the assignment.


5. Fired him, told him that he did not fit in, gave him 6 months severence with a promise not to file suit.


6. He was 47.


So what do I need to do.


Thanks


Holly

Expert:  Andrea, Esq. replied 10 months ago.
Did you ever file a formal complaint against your employer for violations of FMLA ?
Customer: replied 10 months ago.
No, because the only thing at that time was the paperwork that AB uses. I did turn in the federal paperwork and they did approve the conditions, not in the required time though, it took them 11days to discuss the FMLA paperwork. I did call The Dept of Labor when I was fired but they are closed due to furloughs.
I would like to know if their violations are worthy of a suit or at least a larger severance package negotiation. I have been offered another job as of yesterday with similar salary. And benefits so i can play hardball if need be.
Holly
Expert:  Andrea, Esq. replied 10 months ago.

Many employees who are in similar circumstances do not have another jobwaiting for them, so if I were in your position, I would not jeopardize the offer of a new job with another employer. I would file the formal Complaint, but I would go ahead and accept the other job. Your former employer would not have been able to terminate you because of filing the Complaint, but it would have made for a very uncomfortable environment in which to work. You would not have to face that environment and you would have a new job to go to. Accepting a new job would not affect the investigation of your former employer, or his violation of FMLA. But, with the Federal Government agencies threatening a shutdown, there is no telling when your case would be investigated and that would mean that you would be waiting for its conclusion without any paycheck. That is why I have proposed this particular course of action,

 

Please be kind enough to rate Excellent Service" so that I receive credit for assisting you, it will not cost you anything additional to give me a positive rating, and that is the only way I can receive credit, Thank you for understanding,

 

If you receive a Customer Satisfaction Survey from JustAnswer, Please rate a 10 as it gives me a greater opportunity to assist other customers on this website and is greatly appreciated,

 

Thank you for allowing me the opportunity to assist you,

 

ANDREA

 

Customer: replied 10 months ago.
So is the current severance offer negotiable knowing the violations that have occurred or do I take the severance pkg offered and move on.
Holly
Expert:  Andrea, Esq. replied 10 months ago.

Whether or not the severance package is negotiable is something which cannot be answered; it depends on what the company usually does, i.e., if they negotiate or not. Since a complaint has not yet been filed, they might feel that they are in the clear and may not want to negotiate anything. You can try to negotiate and see how receptive they are to the idea, but I would not do anything to jeopardize the new position,



Please be kind enough to rate Excellent Service" so that I receive credit for assisting you, it will not cost you anything additional to give me a positive rating, and that is the only way I can receive credit, Thank you for understanding,

 

If you receive a Customer Satisfaction Survey from JustAnswer, Please rate a 10 as it gives me a greater opportunity to assist other customers on this website and is greatly appreciated,

 

Thank you for allowing me the opportunity to assist you,

 

ANDREA

 

 

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